United States District Court, D. Maryland
JOSEPH W. WEHNER, JR. Plaintiff
BEST BUY STORES, L.P. Defendant
MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
J. Garbis United States District Judge.
Court has before it Defendant's Motion for Summary
Judgment [ECF No. 34], Plaintiff's Cross-Motion for
Summary Judgment [ECF No. 35], and the materials submitted
relating thereto. The Court has held a hearing and had the
benefit of arguments from counsel.
Joseph Wehner (“Wehner”) filed the Complaint [ECF
No. 1] asserting claims against his former employer,
Defendant Best Buy Stores, L.P. (“Best Buy”) and
two of its employees. Wehner presented his claims in four
• Count I - violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq.
• Count II - violation of the Maryland Fair Employment
Practices Act (“FEPA”), Md. Code. Ann., State
Gov't § 20-601 et seq. (2014 Repl. Vol.)(disability
• Count III - violation of FEPA (age discrimination);
• Count IV - violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et
dropped his claims against the individual defendants when he
filed the Amended Complaint [ECF No. 20] and has agreed that
Best Buy is entitled to summary judgment on his age
discrimination claims presented in Counts 3 and 4 of the
instant cross-motions, each side seeks summary judgment.
SUMMARY JUDGEMENT STANDARD
judgment is appropriate where “the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c); see also
Desper Prods., Inc. v. Qsound Labs, Inc., 157 F.3d
1325, 1332 (Fed. Cir. 1998). The Court, viewing the evidence
in favor of the non-moving party, must determine whether a
reasonable fact finder could find for the non-movant or
whether the movant would be entitled to judgment as a matter
of law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986).
motions for summary judgment “do not automatically
empower the court to dispense with the determination whether
questions of material fact exist.” Lac Courte
Oreilles Band of Lake Superior Chippewa Indians v.
Voigt, 700 F.2d 341, 349 (7th Cir. 1983). “Rather,
the court must evaluate each party's motion on its own
merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under
consideration.” Mingus Constructors, Inc. v.
United States, 812 F.2d 1387, 1391 (Fed. Cir.
1987). The Court may grant summary judgment in favor of one
party, deny both motions, or grant in part and deny in part
each of the parties' motions. See Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).
about August 6, 2008, Best Buy hired Wehner as a District
Business Manager. Wehner was fifty years old at the time he
began his employment with Best Buy, possessed a high school
degree, and had more than thirty years of retail managerial
2008, Wehner was appointed interim General Manager
(“GM”) of a Best Buy store in Bel Air, Maryland.
In 2009, Wehner applied for, and received, the position of GM
of a new Best Buy store in Hunt Valley, Maryland. Later,
Wehner was promoted to be GM at the Best Buy store in Bel Air,
which was larger.
November of 2012, Wehner contracted a tick-borne illness and
took a leave of absence pursuant to the Family Medical Leave
Act, 29 U.S.C. § 2601 et seq. Wehner's leave was
extended, with Best Buy's approval, until November 9,
2013, at Wehner's request. After Wehner extended his
leave, Best Buy found someone to permanently replace him as
GM of the Bel Air store.
his recovery, Wehner suffered from migraines, soreness,
fatigue, and loss of concentration. [ECF No. 35-13] at 7-8.
Dr. James S. Langan, a Clinical Neuropsychologist, evaluated
Wehner in April 2013 and concluded that, although Wehner was
“slowly recovering from his illess, ”
[I]n my view [Wehner's] current cognitive abilities would
prevent him from being successful in executing his multiple
responsibilities quickly and efficiently. My concern is that
he will develop increasing stress-related symptoms as he
struggles to keep up with work demands. . . .
For his future, I would recommend that he not return to his
former position. A position of lesser responsibility may be
possible where he is able to draw upon his accumulated wisdom
about the retail industry . . . . Being a store manager
“on the front lines” is not possible at the
present time given his present cognitive limitations.
Rep. [ECF No. 34-7] at 6.
updated the new supervising District Manager Johnny Arias
(“Arias”) and District Human Resources Manager
Cheryl Holland (“Holland”) on his medical
condition, symptoms, and recovery progress. [ECF No. 35-13]
at 7-8. Wehner also worked with Best Buy Human Resources
caseworkers and The Hartford to determine his leave and
anticipated return date. Id.
September 25, 2013, Wehner called Holland and left her a
voicemail about returning to work. Holland did not return
September 30, 2013, Wehner saw his primary care physician,
Dr. John Mulvey. According to Dr. Mulvey's notes from
[Wehner has] been able to concentrate better . . . [and] is
finally getting confidence back. He does not feel that he can
return to [the GM] position of long hours . . . corporate
duties in which he has a 40 hour week and a more manageable
schedule to avoid multiple distracting demands . . . is
something he could do.
Notes [ECF No. 35-10].
about October 4, Holland emailed Wehner's caseworker from
the Best Buy HR Support Center. Holland wrote, “I have
recently tried to reach out to Joseph Wehner. He didn't
respond. He is expected to return to work in the first week
of November. What are the next steps to secure his return or
facilitate his termination?” [ECF No. 35-12] at 2. The
caseworker replied that he had told Arias that Wehner was
approved for leave until November. Holland responded,
“I just want you to reach out to Joe [Wehner] to start
the process of returning him to work or terminating his
employment if possible.” Id.
called Holland on October 7, 2013, to discuss returning to
work, but did not talk to her. On October 16, 2013, Wehner
sent an email to Holland and Arias to “touch base with
each of [them] in regards to returning to work with Best
Buy.” [ECF No. 35-13]. Holland replied to this email on
October 17 and explained she was out of town for work and
asked to meet with Wehner the following week. Id.
Arias stated that he and Holland originally thought that
Wehner would return to a vacant GM position or a similar
position. See Arias Dep. [ECF No. 34-4] at
October 21, 2013, Wehner scheduled a phone call with Holland
and Arias for October 22, 2013, in lieu of a meeting. Before
the call, Wehner faxed Holland an excerpt of Dr. Langan's
medical report from April 2013 - the only medical
documentation that Holland had seen so far.
prior to the phone call with Wehner, Holland spoke with
Arias, a Best Buy attorney, the regional manager, and the
Territory Human Resources Director, Courtney Capeling, to
discuss potential positions to offer Wehner. Holland Dep.
[ECF No. 34-5] at 81-86.
the October 22 phone call, Wehner said he could not return to
work as a GM. Holland and Arias offered Wehner an Assistant
Manager position, a mobile supervisor position and, possibly,
a General Manager In Training (“GMIT”) position.
Wehner rejected these offers because, he says, he believed
that he would be medically unable to perform these jobs
because they were similar to the GM position he once held.
Wehner Dep. [ECF No. 34-2] at 86:16-19, 89:2-10, 98:8-22.
the October 22 phone call, Wehner stated he was interested in
three positions he had seen on the Best Buy website: a
Delivery Distribution Center Supervisor (“DDC”)
position, a District Services Manager (“DSM”)
position in District 95, and a Deputy Field
Marshal (“DFM”) position. Wehner
submitted a formal application only to the DDC position.
Ultimately, Best Buy did not offer Wehner any of these
did not offer the DSM position to Wehner because it was in a
different district and “not under [her] supervision,
” and she and Arias “weren't the people who
would decide who got those jobs.” Holland Dep. [ECF No.
34-5] at 88:21, 91:14-17. Wehner was told that he had to
apply online, which he did not do.
position was located in District 25, but Holland was not in
charge of hiring for that position. Holland called the HR
manager involved and learned that Wehner could not be
considered for the DDC position because he did not possess
the required Associate's degree.
contacted the DFM position supervisor to inquire into the
availability of the position because no openings were listed
on the website. The DFM supervisor told her there were no DFM
positions available. On October 24, 2013, Holland sent Arias
an email informing him that no DFM positions were available
and that for the DDC position “a two year degree is
REQUIRED and a four year degree is preferred!!!!” [ECF
took no further action to locate other vacant positions in
the Mid-Atlantic region. Altogether, Holland had about three
to four verbal conversations with Wehner during the relevant
time period. Holland Dep. [ECF No. 34-5] at 155:18-156:1.
Holland and Arias called Wehner on November 1, 2013, to
inform him that they could not find him an alternative
position, and Wehner was notified by email several days later
that he would soon be terminated. Best Buy terminated Wehner
on November 13, 2013.
Disability Discrimination Claims (Counts I - II)
asserts “failure to accommodate” claims under the
ADA and FEPA.
prohibits employers from “discriminat[ing] against a
qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or
discharge of employees, . . . .” 42 U.S.C. §
12112(a)(2012). FEPA prohibits essentially the same
conduct. Unlawful discrimination includes
“not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability . . . unless such covered entity
can demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered
entity.” 42 U.S.C. § 12112(b)(5)(A)(2012).
instant case proceeds pursuant to a burden of proof shifting
• Plaintiff must present a prima facie case that there
was a failure to make a reasonable accommodation.
• If he does, the burden shifts to the Defendant to
prove that a reasonable accommodation would have ...