United States District Court, N.D. Georgia, Atlanta Division
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For Kirk Medearis, Plaintiff: Michael O. Mondy, Michael O. Mondy, P.C., Atlanta, GA.
For CVS Pharmacy, Defendant: Tracey T. Barbaree, Littler Mendelson, P.C.-Atl, Atlanta, GA.
THOMAS W. THRASH, JR., United States District Judge.
This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 56] of the Magistrate Judge recommending granting the Defendant's Motion for Summary Judgment [Doc. 48]. The Plaintiff's Objections to the thorough and well-reasoned Report and Recommendation are without merit. It is clear from the record as a whole that the Plaintiff was unable to perform the essential functions of his job as Store Manager with or without reasonable accommodations. The record does not support his constructive discharge claim. Therefore, his race discrimination claim fails in the absence of an adverse employment action. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendant's Motion for Summary Judgment [Doc. 48] is GRANTED.
FINAL REPORT AND RECOMMENDATION
JANET F. KING, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Kirk Medearis filed the above-styled employment discrimination action on June 3, 2013. [Doc. 1]. Plaintiff Medearis alleges that Defendant CVS Pharmacy subjected him to discrimination on the basis of disability and race. [Id.]. Plaintiff's claims are based on Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended, 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq. [Id.]. Plaintiff asserts that Defendant refused to make reasonable accommodations for him to work light duty and required him to " work under much stricter and far less equal terms and conditions." [Doc. 1]. Defendant CVS has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on Plaintiff's claims based upon the pleadings, statements of material facts, exhibits, and discovery materials submitted to the court. [Doc. 48].
Comer v. City of Palm Bay, Florida,
265 F.3d 1186, 1192 (11th Cir. 2001). However, mere conclusions and unsupported self-serving statements by the party opposing summary judgment are insufficient to avoid summary judgment. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). Therefore, the evidence presented by the parties having been evaluated in accordance with the foregoing principles, the following facts are deemed to be true for the limited purpose of evaluating Defendant's motion [Doc. 48] for summary judgment.
Plaintiff Kirk Medearis began working for Defendant CVS Pharmacy in 1999 in Philadelphia. [Plaintiff's Deposition (" Pla. Dep" ) at 26]. Plaintiff Medearis was promoted to store manager around May or June of 2000. [Pla. Dep. at 27]. After a number of transfers, including working in Miami, Plaintiff eventually became the Store Manager of store 4178 in southwest Atlanta. [Id. at 42-44, 67-69]. Bob Johnson was Plaintiff's District Manager at store 4178, followed by Herb Farley " for a few weeks." [Id. at 68-69, 109]. In 2011, Plaintiff was assigned to the Store Manager position of another CVS store in Atlanta, store 4147, where Neal Lindler was his District Manager. [Id. at 87-88; Lindler Declaration (" Dec." ) ¶ 2].
Plaintiff testified that as a Store Manager, he needed to do things like lift, bend, and squat. [Pla. Dep. at 46]. He also stated that he was required to work a flexible schedule and that he was " essentially on call if anything was needed at [his] store." [Id. at 47-48]. Plaintiff testified that as a Store Manager, he regularly helped unload the delivery truck. [Id. at 74]. According to Plaintiff, one day per week, the store received a truckload of deliveries, and he and another employee spent the entire day unloading the truck and distributing the merchandise to the stocking shelves. [Pla. Dep. at 76-78]. Plaintiff often had to carry merchandise up steps. [Id. at 76]. On another day each week, Plaintiff walked around the store with a handheld scanning gun to scan out of stock merchandise. [Id. at 79-80]. Plaintiff testified that when a store's hours are reduced, it requires the Store Manager to do more physical work, including reorganizing, resetting, customer service, and cleaning. [Pla. Dep. at 92, 98-100; Defendant's Statement of Material Facts (" DSMF" ) ¶ 10].
On October 1, 2011, Plaintiff sent an email to District Manager Neal Lindler and Bob Henderson, a CVS Human Resources Business Partner, requesting three accommodations related to his treatment for rheumatoid arthritis. [DSMF ¶ 1; Henderson Dec. ¶ 2; Henderson Dep. at 9]. Plaintiff requested 50 extra operating hours per week, palletized truck deliveries to his store, and a flexible work schedule. [DSMF ¶ 1; Plaintiff's Statement of Material Facts (" PSMF" ) ¶ 1; Henderson Dep. at 19-21; Doc. 53, Ex. 3]. Plaintiff testified that he required all of these accommodations in October 2011. [Pla. Dep. at 204-05; Doc. 53, Ex. 3]. Henderson testified that he viewed Plaintiff's request for 50 extra hours per week as " essentially, what he's asking for is someone to do his job." [Henderson Dep. at 21].
Henderson responded to the email the next day by writing:
Kirk, you have to call into to [sic] corporate to request accommodations. They don't go to your DM [District Manager]. Then we will engage in an active accommodation process to see what we can and cannot accommodate. Your Dr. will have to fill out some documentation as well. Once we receive the request from corporate then we can begin the process. We welcome the process per the ADA guidelines.
[Henderson Dep. at 19-22; Doc. 53, Ex. 3; PSMF ¶ 2]. Plaintiff Medearis provided CVS with information from his physician, Dr. Karen Law, dated October 13, 2011. [Doc. 53, Ex. 6; PSMF ¶ 4]. Dr. Law wrote a letter which stated in pertinent part:
Mr. Kirk Medearis is a patient seen in Rheumatology Clinic for an ongoing joint condition. His condition causes swelling, stiffness, and pain in his joints which is sometimes exacerbated by activity. . . . [W]hile his medications are being adjusted I recommend that he goes on light duty at his occupation, and should limit heavy lifting to no more than 10 lbs, and limit periods of standing to no longer than an hour at one time. He will need to take frequent breaks. He will return to my office in 6 weeks time for re-evaluation, and we will determine his ability to increase duties at that time.
On October 14, 2011, Henderson directed District Manager Lindler to inform Plaintiff Medearis " that he needs to apply for LOA [leave of absence] immediately, then we can see if we can accommodate the restrictions. But 10 lbs as a store manager [we] would not be able to accommodate. Therefore he needs to be on Full LOA until his restrictions are applicable." [PSMF ¶ 5; Doc. 53, Ex. 7]. Ten days later, on October 24, 2011, Henderson sent Plaintiff an email further explaining the reason for the leave of absence. [Doc. 53, Ex. 9; PSMF ¶ 14]. Henderson wrote in part:
[Y]our doctor said in his note that your condition would be " exacerbated by activity" until your medication was corrected. He then went onto the limitations. I didn't want to take a chance of causing harm to your condition and not being able to comply with the directives. Even the restriction of no lifting over 10 lbs I couldn't guarantee that we could accommodate in a FS manager position. We have many items that exceed this limit and didn't want you to be noncompliant with your Dr. order and trying to help a customer. So the best thing to protect you was the LOA that is what it is there for.
[Doc. 53, Ex. 9; PSMF ¶ 14]. According to Defendant CVS, lifting more than 10 pounds, standing for longer than an hour, working a flexible schedule, and unloading merchandise from a truck and distributing it throughout the store were essential functions of Plaintiff's Store Manager position. [DSMF ¶ 5]. In the job description of a CVS Store Manager, the physical requirements of the job are described as follows: " Ability to lift 35 pound trays/cases to height of 4 feet and move trays/cases from one location to another in the store; ability to bend and squat frequently to move/locate merchandise." [PSMF ¶ ¶ 9, 18; Henderson Dep. at 135-40; Doc. 53, Ex. 15]. CVS asserts that a Store
Manager's inability to perform these functions would have a business impact on the store. [Id.].
On October 18, 2011, Defendant CVS mailed Plaintiff Medearis a letter and a " reasonable accommodation questionnaire" form. [PSMF ¶ 13]. The form was completed by Plaintiff's doctor and provided to CVS on November 6, 2011. In the form, Plaintiff's doctor recommended part-time employment with frequent rest periods, no lifting of more than 10 pounds, and no standing for more than 30 minutes at a time. [Doc. 53, Ex. 11; PSMF ¶ 15]. If part-time, light duty work in accordance with these recommendations was not available, then the physician recommended a short term leave of absence. [Doc. 53, Ex. 11]. Plaintiff was on leave pursuant to the Family and Medical Leave Act (" FMLA" ) from October 18, 2011, until November 29, 2011, when he returned to his Store Manager position. [Pla. Dep. at 211, 292; Plaintiff's Response (" Pla. Resp." ) to DSMF ¶ ¶ 15, 16, 18].
Plaintiff Medearis returned to work with a physician's note on November 29, 2011. The physician recommended that Plaintiff return slowly to his regular duties, that lifting be limited to no more than 15 pounds, that standing be limited to no more than four hours at a time, and that Plaintiff be permitted to take periodic breaks as needed. [Pla. Dep. at 225-26; Doc. 50-1 at 33; DSMF ¶ 11]. Plaintiff was asked and testified to the following:
Q. Are you claiming that when you returned to work November 29th, 2011, those restrictions were not followed?
A. Yes, they were not followed.
Q. Because you were, as a store manager, after November 29th, 2011, required to lift more than 15 pounds, right?
Q. And you were required to sometimes stand for periods longer than ...