Steak ‘n Shake earns victory in discrimination suit

By David Hutton | Jan 10, 2018

ST. LOUIS — A U.S. District Court judge has granted summary judgment to Steak ‘n Shake in a discrimination lawsuit filed by a former employee against the restaurant chain.

ST. LOUIS — A U.S. District Court judge has granted summary judgment to Steak ‘n Shake in a discrimination lawsuit filed by a former employee against the restaurant chain.

U.S. District Judge Catherine D. Perry for the Eastern District of Missouri signed the order granting summary judgment and it was filed on Dec. 11.

Gary Denson filed the lawsuit against Steak ‘n Shake, alleging the restaurant discriminated against him because he is disabled, a violation of the Americans with Disabilities Act.

Denson also alleged that the restaurant retaliated against him when he exercised his rights under the Missouri Worker’s Compensation statute.

Steak ‘n Shake, however,  maintained that Denson could not make a case for discrimination under the ADA; and it further maintained that he didn’t oppose its foundation or summary judgment on his worker’s compensation retaliation claim, essentially waiving his rights to that claim.

Denson underwent hip replacement surgery in 2011, and he suffered lower back pain after slipping at a previous job.

Also in 2011, Dr. Paul Lux placed Denson on permanent restrictions due to his back issues, and he was prohibited from lifting any weight.

In November 2014, Denson was hired as a fountain operator at Steak ‘n Shake’s location in O’Fallon. He told his employer he had a disability and was limited in how much he could lift, but he didn’t disclose his permanent work restrictions.

Lifting, pushing and being able to carry up to 30 pounds is part of the job description for a fountain operator at Steak ‘n Shake.

Denson reinjured his hip and back when he fell on the job in January 2015. He had another fall a month later.

A year later, Denson was placed on lifting, walking and standing restrictions; and a doctor said he should remain in Lux’s permanent restrictions of clerical and sedentary activities because he had recovered as much as he would ever recover.

After a safety violation, a Steak ‘n Shake human resources manager removed Denson from the schedule on Feb. 10, 2016. This resulted in his claim for worker’s compensation against Steak ‘n Shake.

Denson also filed a discrimination claim with the Equal Employment Opportunity Commission and the Missouri Human Rights Commission.

After Denson filed his complaint with the court on Sept. 19, 2016, Steak ‘n Shake moved for summary judgment.

In his deposition testimony, Denson admits Steak ‘n Shake’s job description of a fountain operator is accurate, 

 “Therefore, because Denson’s medical restrictions were inapposite to the essential functions of his job, Steak ‘n Shake was reasonably justified in relying on these restrictions as grounds for removing him from the schedule for a safety evaluation," Perry wrote in the order.

Perry also noted that reassignment isn’t always required of employers in every instance. There must be a vacancy and employers are not required to “bump” another employee in order to open a position.

“In this case, Denson alleges he requested to work as a host at the O’Fallon location,” Perry wrote. “However, it is undisputed that the position was not vacant, but held by another person with a disability.”

Perry granted Steak ‘n Shake’s motion for summary judgment on both counts.

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