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Wehner v. Best Buy Stores, L.P.

United States District Court, D. Maryland

March 10, 2017

JOSEPH W. WEHNER, JR. Plaintiff
v.
BEST BUY STORES, L.P. Defendant

          MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT

          Marvin J. Garbis United States District Judge.

         The 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.

         I. INTRODUCTION

         Plaintiff 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 counts:

• Count I - violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (2012);
• 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 discrimination);
• Count III - violation of FEPA (age discrimination); and
• Count IV - violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (2012).

         Wehner 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 Amended Complaint.[1]

         By the instant cross-motions, each side seeks summary judgment.

         II. SUMMARY JUDGEMENT STANDARD

         Summary 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).

         Cross 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).

         III. DISCUSSION

         A. Factual Background[2]

         On or 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 experience.

         In late 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[3] to be GM at the Best Buy store in Bel Air, which was larger.

         In 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.

         During 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.

         Langan Rep. [ECF No. 34-7] at 6.

         Wehner 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.

         On September 25, 2013, Wehner called Holland and left her a voicemail about returning to work. Holland did not return Wehner's call.

         On September 30, 2013, Wehner saw his primary care physician, Dr. John Mulvey.[4] According to Dr. Mulvey's notes from that visit,

[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.

         Mulvey Notes [ECF No. 35-10].

         On or 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.

         Wehner 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 203:19-204:13.

         On 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.

         Also 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.

         During 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[5] (“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.

         During 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[6] (“DFM”) position. Wehner submitted a formal application only to the DDC position. Ultimately, Best Buy did not offer Wehner any of these positions.

         Holland 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.

         The DDC 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.

         Holland 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 No. 35-14].

         Holland 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.

         B. Disability Discrimination Claims (Counts I - II)

         Wehner asserts “failure to accommodate” claims under the ADA and FEPA.

         The ADA 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.[7] 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).

         The instant case proceeds pursuant to a burden of proof shifting procedure whereby:

• 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 ...

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