MEMORANDUM AND ORDER REGARDING DEFENDANT WALGREEN’S MOTION FOR SUMMARY JUDGMENT, PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND PLAINTIFF’S CROSS-MOTION FOR DISCOVERY RELIEF (Dkt. Nos. 73, 85, & 107)
L INTRODUCTION
Plaintiff, Pamela Jones, filed a ten-count complaint against her employer, Defendant Walgreen Company (“Defendant Walgreen”); Metropolitan Life Insurance Company, the claims administrator for De
At issue here are Defendant Walgreen’s motion for summary judgment on Counts I, II, III, and IV (Dkt. No. 73), and Plaintiffs motion for partial summary judgment on Counts III and IV (Dkt. No. 85). For the reasons stated below, Defendants’ motion will be allowed, and Plaintiffs motion will be denied.
II. FACTS
Plaintiff began working as a Store Manager for Defendant Walgreen in Enfield, Connecticut, in 1986. Plaintiff reported to District Manager Jerry Telson, who had worked for Defendant Walgreen for more than twenty years. In January 2004, Plaintiff injured her knee when she slipped on ice at work. Plaintiff was on medical leave until May, when she returned to work, but left again in June to have surgery on her knee. (Dkt. No. 89, PI. Statement of Facts, ¶ 4.) On November 30, 2004, Plaintiff sent Telson a report from her orthopedist, Dr. Martin Luber, regarding her prognosis and work restrictions. The report provided a return-to-work date of “undetermined,” with the recommendation that Plaintiff do “[n]o work,” “no prolonged standing or walking,” “[n]o squatting, kneeling, stair climbing,” and “[n]o lifting, pushing, pulling, or carrying greater than 25 pounds” until her next appointment, the date of which was not on the report. (Dkt. No. 93, Ex. 2.) The report further stated, “I think that Ms. Jones is most likely left with some permanent restrictions____ I think that she could perform a sedentary job or a job in which she is not expected to carry or lift more than 25 lbs.” (Id.)
Nevertheless, three months later, on March 2, 2005, Plaintiff informed Telson that she wished to return to work with “reasonable accommodations.” (Dkt. No. 81, Ex. 11.) On April 14, 2005, Plaintiff followed up this letter with a revised report from Dr. Luber restricting her to lifting less than twenty-five pounds and recommending minimal bending, stooping, and squatting. (Dkt. No. 81, Ex. 12.) In early May 2005, Telson offered Plaintiff a position as Training Manager, a slot below her prior position of Store Manager, which she accepted. However, days later, on May 4, Plaintiff took another medical leave to have surgery on her foot. (Dkt. No. 81, Ex. 14.) Following this surgery, Plaintiff sent a doctor’s note to Telson, stating that she could return to work on July 11, 2005, with no new restrictions. (Dkt. No. 81, Ex. 15.)
Meanwhile, in July 2005, while out on medical leave, Plaintiff filed an action with the Connecticut Commission on Human Rights and Opportunities and the federal Equal Opportunity Employment Commission accusing Defendant Walgreen of engaging in illegal workplace discrimination against women. In mid-2006, Plaintiff received release of jurisdiction and right-to-sue letters, and she then filed a class action complaint in the District of Connecti
In mid-October 2005, Telson offered Plaintiff a promotion to her prior position as a Store Manager for the Springfield, Massachusetts location. On October 12, 2005, Plaintiff responded to him by email to express “concerns I have which you should be aware of before I accept this position.” (Dkt. No. 1, Ex. 5.) Plaintiff described her “substantial” health restrictions, which precluded her from climbing ladders, lifting anything in excess of twenty pounds, and working for longer than eight hours, and stated that she believed that the store was understaffed and that she deserved a raise. (Id.) Finally, Plaintiff clarified that “[a]s the Store Manager, it will be my approach to delegate, as often as time and circumstances allow, the physical obligations of store operations to the assistant managers and store personnel.” (Id.)
In September 2006, Plaintiff expressed to Telson that she was “walking] imbalanced” and having difficulty putting in shelving, which she attributed “maybe” to “the way I stand because of my knees.” (Dkt. No. 93, Ex. 10, Telson Dep. 274:22-25.) Plaintiff also told Telson that she was working longer hours than her doctor had advised. (Id. at 171:11-12.) Telson requested updated medical information from Plaintiff, which she sent on September 11 with additional clarifications on September 14. Dr. Luber’s response described significant additional limitations beyond those noted in April 2005. He indicated that Plaintiff now could not stand or walk for longer than thirty minutes without sitting and could not stand or walk on any day for longer than a total of four-to-five hours. She could not at any time squat, stoop, bend, reach below her knees, or climb stairs or ladders. She could not lift anything more than fifteen pounds. (Dkt. No. 93, Exs. 11,13.)
One month later, on October 13, 2006, Telson tendered Plaintiff a notice of termination, effective immediately. The letter stated in part:
I have reviewed the September 11 and September 14, 2006 correspondence from Martin J. Luber, M.D. which outline your permanent work-related restrictions. Based on that information, it is clear that you can no longer perform the essential functions of your position as Store Manager. Therefore, we have no choice but to relieve you of your position effective today.... Please know that there may be district office positions available for which you may be qualified given your skill set and the essential functions of which you can perform given your restrictions.... Please let me know if there are any other areas of the country or specific districts in which you are interested.
(Dkt. No. 93, Ex. 15.) The letter outlined Plaintiffs benefits, including that she would receive full pay through January 18, 2007. In a series of letters in November, Plaintiff expressed her interest in working in a district office but did not specify, despite Telson’s request, in which of Defendant Walgreeris 231 district offices she would be willing to work. (Dkt. No. 82, Exs. 23-26.) Discussions about alternative employment apparently ceased at that point.
III. DISCUSSION
A. Legal Standard.
Summary judgment is appropriate when there is no genuine issue as to any materi
B. Counts III and IV: Disability Discrimination Claims.
Plaintiff has alleged that Defendant Walgreen discriminated against her based on her disability in violation of 42 U.S.C. §§ 12101
et seq.
and Mass. Gen. Laws ch. 151B, § 4(16). Because “Chapter 151B is considered the ‘Massachusetts analogue’ to the federal Americans with Disabilities Act,” the court’s analysis under federal and state law is the same.
Sensing v. Outback Steakhouse of Fla., LLC,
1. Prong One: Disability.
To prove that she is disabled under the ADA, Plaintiff must demonstrate that she has “a physical or mental impairment which substantially limits one or more of [her] major life activities.”
Carreras v. Sajo,
Plaintiff alleges that she has a “well-documented, chronic condition in both of her knees.” (Dkt. No. 95, Pl. Mem. in Supp. at 11.) Because “walking, standing, lifting, [and] bending” are considered “major life activities” under 42 U.S.C. § 12102(2)(A)(1), she argues, she is therefore disabled under the ADA. However, other than Dr. Luber’s work restrictions, the record is devoid of any evidence — not affidavits, not deposition testimony, not medical reports — on which
Admittedly, it is beyond dispute that Plaintiff has significant restrictions on walking, squatting, bending, and standing to some degree, and Plaintiff contends that the court can infer that Dr. Luber’s recommended limitations on Plaintiff would follow her throughout her day. Fortunately, the court need not venture further into the thorny issue of whether the record supports a finding that Plaintiff is “disabled” as defined by the federal and state statutes. For purposes of this analysis the court will assume she could sustain her burden on this element. As will be seen, however, it is beyond dispute that no reasonable jury could find in Plaintiffs favor on the second element of her disability claim, requiring her to show that she was able to perform the essential functions of her job even with reasonable accommodations.
2. Prong Two: Ability to Perform Essential Functions of the Job.
On the second prong of the disability analysis, Plaintiff must prove that she was a qualified individual, meaning “an individual 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).
See Calef,
a. Essential Functions of the Store Manager.
The essential functions of the Store Manager position are not in dispute, nor is the fact that the official job description of the position fails to encompass all of the requirements. Plaintiff testified that pri- or to her knee injury in 2004, her Store Manager duties included inspecting the sales floor, assisting customers with requests, placing signs on the sales floor, cleaning shelves, restocking shelves, unloading delivery trucks, and using a ladder to reach high shelves. (Dkt. No. 79, Ex. 1, Jones Dep. 14:3-19:14.) She further testified that she walked the floor “numerous” times on a daily basis. {Id. at 19:15— 17.) Plaintiff described her job duties to Dr. Steven Schutzer, who was conducting an independent medical evaluation in conjunction with her disability application, as requiring a 70-80 hour work week and including unloading trucks, unpacking merchandise, stocking shelves, climbing up and down, stooping, squatting, and kneeling. (Dkt. No. 82, Ex. 21.)
Telson, who was a Store Manager for fourteen years before his promotion to
You’re going to sweep floors, You’re going to clean bathrooms. You’re going to unload trucks. You’re going to stock shelves. You’re going to make end stands become side racks, build tables, make the Valentine aisle become the Easter aisle, the Easter aisle become the summer, the back to school, the Halloween. So it’s a physical job as well.... You have to unload trucks. You’ve got to pull the stock. You’ve got to load shelves.
(Dkt. No. 93, Ex. 10, Telson Dep. 59:2-10; 60:5-7.) The “essential physical elements” of the position also included “pulling back room” and “resets and revisions,” which were essentially inventorying the entire store and rearranging shelves. (Id. at 111:21-24.)
Telson further testified that one of the most important jobs of the Store Manager is to “walk their store aisle by aisle three feet by three feet every day,” a task that could take more than an hour given the constant interruptions by customers, vendors, and employees. (Dkt. No. 93, Ex. 10, Telson Dep. 99:7-8, 146:1-15.) Moreover, according to Telson, the store-walking task could not be done effectively in segments because the purpose was to get an overview of what was needed at the store and to create a daily task list. (Id. at 150:17-25.) Defendant Walgreen deposed two Store Managers, one of whom testified that he spends six-and-a-half hours on the sales floor every day (Dkt. No. 84, Ex. H, Dickey Dep. 48:25) and one of whom testified that she spends two or three hours doing her walkthrough each day (Dkt. No. 84, Ex. I, Patchell Dep. 63:19.)
b. Plaintiff’s Inability to Perform the Essential Functions.
It is not disputed that “Plaintiff bears the burden of showing [s]he is qualified.”
Calef,
In response, Plaintiff argues that the strongest evidence of her ability to perform the job was that she had worked as a Store Manager since 1986 and was working as a Store Manager until the day that she was terminated. Clearly, though, the issue is not whether she was employed as a Store Manager, which she indisputably was, but whether she was able to perform the essential functions of the position. “ ‘An ADA plaintiff may not rely on past performance to establish that [s]he is a qualified individual without accommoda
Plaintiff additionally argues that she could, and did, delegate those tasks that required her to exceed her restrictions. Telson, in fact, stated that a Store Manager could delegate many responsibilities. For example, although the Store Manager is responsible for ensuring that the bathrooms are clean and floors are swept, a Store Manager could delegate the actual cleaning and sweeping. (Dkt. No. 93, Ex. 10, Telson Dep. 65:19-66:2; 68:2-4.) Store Manager Rosemary Patchell testified that she never unloads a truck but does sweep the floors. (Dkt. No. 84, Ex. I, Patchell Dep. 65:12-66:12.)
However, “ ‘the law does not require an employer to accommodate a disability by foregoing an essential function of the position or by reallocating essential functions.’ ”
Richardson,
Finally, Plaintiff contends that if Defendant Walgreen did not believe that she could perform the essential functions of the position, it should have engaged her in discussions about additional accommodations rather than summarily terminating her. See 29 C.F.R. 1630.2(o)(3) (“To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process ... to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”).
It is true that, had Defendant Walgreen done so, the parties might have reached an agreement that Plaintiff was no longer qualified to be a Store Manager. That said, while “[t]here may well be situations in which the employer’s failure to engage in an informal interactive process would constitute a failure to provide reasonable accommodation that amounts to a violation of the ADA,” this is not always the case.
Jacques v. Clean-Up Group,
The evidence that the Store Manager position is physically demanding is overwhelming, as is the evidence that Plaintiff
3. Prong 3: Adverse Employment Action.
Given Plaintiffs failure to satisfy the second prong of the prima facie analysis, the court could end its discussion here. However, the adverse employment action prong merits brief attention.
Plaintiff received her notice of termination as Store Manager on October 16, 2006. Plaintiff argues that the proximity of her termination to Telson’s September receipt of more specific medical documentation of her restrictions is evidence that she was fired because of her disability. Defendant Walgreen points out that Dr. Luber’s report added significantly increased restrictions and for the first time made them permanent. Based on this report, Defendant Walgreen determined that Plaintiff could not perform the essential functions of her job, which included walking and standing for long periods, and, thus, it was obliged to terminate her from the position.
The medical records in evidence support both Defendant Walgreen’s determination that Plaintiff could not perform the essential functions of her job, as well as its contention that it was not until September 2006 that it learned of the severity and permanence of Plaintiff’s limitations. As noted above, in April 2005, Dr. Luber recommended that Plaintiff minimize squatting, kneeling, stair climbing, bending, stooping, or reaching below the knees, and set her weight limit for lifting at twenty-five pounds. (Dkt. No. 98, Ex. 5.) In sharp contrast, in September 2006, Dr. Luber restricted Plaintiff permanently to no squatting, kneeling, stair climbing, bending, stooping, or reaching below the knees. Moreover, at this time, she was required to minimize standing and walking, lift no more than fifteen pounds, and work no more than an eight-hour day. (Dkt. No. 93, Ex. 11.)
Particularly important here is the distinction that Plaintiff has failed to draw between her disability and her restrictions. Plaintiff contends that she was wrongfully terminated because of her
disability.
Defendant Walgreen freely admits that she was terminated because of her
restrictions.
Plaintiff has conflated her disability and her restrictions, overlooking the fact that “[a]n employer may base a decision that the employee cannot perform an essential function on an employee’s actual limitations, even when those limitations result from a disability.”
Calef v. Gillette Co.,
In conclusion, because Plaintiff has failed to establish that she was able to perform the essential functions of her job, the court will allow Defendant’s motion for summary judgment on Counts III and IV and deny Plaintiffs motion on the same counts.
C. Counts I and II: Retaliation Claims.
Plaintiff has alleged that Defendant Walgreen retaliated against her in violation of 42 U.S.C. § 2000e-3 and Mass. Gen. Laws ch. 151B, § 4(4). Neither federal nor state law requires that a plaintiff succeed on a discrimination claim in order to assert a claim of retaliation.
Wright v. CompUSA Inc.,
To establish a
prima facie
claim of retaliation, Plaintiff must demonstrate that she engaged in protected activity and suffered an adverse employment action as a result.
Bennett v. Saint-Gobain Corp.,
“The cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’”
Clark Cnty. Sch. Dist. v. Breeden,
Plaintiff contends that this explanation is pretextual. “An employee can establish pretext ‘by showing weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons
such that a factfinder could infer that the employer did not act for the asserted non-discriminatory reasons.’ ”
Carreras v. Sajo,
Although Plaintiff asserts that Telson’s request that she submit medical documentation was in itself evidence of retaliation because he had never before requested such documentation, Telson testified, and Plaintiff did not dispute, that he requested it only after Plaintiff complained to him that she was having trouble due to her physical condition. As noted above, Plaintiff had commented to Telson that she was walking off-balance and having difficulty putting in shelving. (Dkt. No. 93, Ex. 10, Telson Dep. 274:22-25.) Telson testified that he was concerned about the impact that Plaintiffs work was having on her because these complaints of physical difficulties were new. (Id. at 275:10.) Moreover, he stated that when he spoke to Plaintiff to ensure that she was remaining within her restrictions, she told him that she was working longer hours than she should. (Id. at 171:11-12.) Accordingly, he sought to clarify exactly what Plaintiffs restrictions were because the most recent records that he had were from April 14, 2005.
Furthermore, Telson had documented his concerns about Plaintiffs ability to perform her job in Plaintiffs March 2006 performance review, which covered her work as Store Manager since October 2005. Plaintiff met expectations in many areas with the notable exceptions of “Customer Service,” “Inventory Management,” and “Store Condition,” in which Plaintiff received a rating of “Needs Improvement.” (Dkt. No. 93, Ex. 8.) Significantly, these are all areas that Telson testified were connected to Plaintiffs restricted ability to be present on the sales floor.
Plaintiff has offered no evidence to refute Defendant Walgreen’s proffered explanation. In the end, Plaintiffs repeated assertions that retaliation is established by the temporal proximity between Telson’s receipt of medical documentation and her termination provide no evidence on which a jury could determine that Defendant Walgreen retaliated against Plaintiff.
The court further observes that Defendant Walgreen was aware of the lawsuit beginning in July 2005 when Plaintiff first filed her claim with the Connecticut Commission on Human Rights and Opportunities and the Equal Opportunity Employment Commission. Despite this, in October 2005, Plaintiff was promoted and given a raise. (Dkt. No. 80, Ex. 1, Jones Dep. 84:6-14.) “Logically, such positive developments cut against any plausible inference of retaliation.”
Bennett v. Saint-Gobain Corp.,
For these reasons, the court will allow Defendant Walgreen’s motion for summary judgment on Counts I and II of the complaint.
IV. CONCLUSION
For the foregoing reasons, Defendant Walgreen’s motion for summary judgment on Counts I, II, III, and IV (Dkt. No. 73) is hereby ALLOWED, and Plaintiffs motion for partial summary judgment on Counts III and IV (Dkt. No. 85) is hereby
It is So Ordered.
Notes
. As of August 27, 2010, the suit had settled for $17,000,000 to be distributed among 21,-000 class members, including Plaintiff, with each class member receiving between $100 and $6000. (Dkt. No 93, Ex. 17.)
. Plaintiff does not contend that she was regarded as having an impairment as defined by 42 U.S.C. § 12102(1)(C).
. At the time she was terminated, Plaintiff was not following her doctor’s restriction that she work only an eight-hour day. Plaintiff stated that four days each week, she worked for nine hours, and one day each week, she worked for twelve hours. She also worked a half or full day on Saturday and Sunday as needed. (Dkt. No. 111, Ex. 3.) However, an employer is obviously not obligated to offer an "accommodation” to an employee that is contrary to medical advice and would place the employee at risk.
. In her deposition, Plaintiff suggests that a number of actions on the part of Defendant Walgreen were retaliatory, including a warning she received for removing company documents from the store and her "exclusion” from a company conference for Store Managers during the time she was a Training Manager. (Dkt. No. 80, Ex. 1, Jones Dep. 131:10— 23.) The court declines to consider any of these allegations because Plaintiff did not raise them in her summary judgment motion or even in her complaint.