Luna v. Walgreen Co.

• Decision Date: 22 August 2008
• Docket Number: No. 07-21095-CIV.,07-21095-CIV.
• Parties: Asencion LUNA, Plaintiff v. WALGREEN COMPANY d/b/a Walgreens, Defendant.
• Court: U.S. District Court — Southern District of Florida

Page 1326

575 F.Supp.2d 1326

Asencion LUNA, Plaintiff v. WALGREEN COMPANY d/b/a Walgreens, Defendant.

No. 07-21095-CIV.

United States District Court, S.D. Florida, Miami Division.

August 22, 2008.

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Sina Negahbani, Miami, FL, for Plaintiff.

Lori Anne Brown, Gaye Lon Huxoll, Patrick F. Martin, Littler Mendelson, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ADALBERTO JORDAN, District Judge.

Ms. Luna, claiming to be disabled because of her inability to stand for long periods of time, filed this action alleging that Walgreens failed to accommodate her and retaliated against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12102, et seq., the Florida Civil Rights Act (FCRA), Fla. Stat. § 760.01 et seq., and the Florida Whistleblower's Act (FWA), Fla. Stat. § 448.101, et seq. In Count I, Ms. Luna alleges that Walgreens failed to accommodate her disability in violation of the ADA and the FCRA. In Count II, she alleges that Walgreens unlawfully retaliated against her in violation of the ADA and the FCRA. In Count III, she alleges, without any explanation, that Walgreens unlawfully retaliated against her in violation of the FWA. Walgreens moved for summary judgment and on July 25, 2008, I heard oral arguments from the parties. At oral argument, Ms. Luna withdrew any claims of actual disability, and chose to proceed only on the theory that Walgreens regarded her as disabled.

For the reasons which follow, Walgreens' motion for summary judgment [D.E. 49] is GRANTED.

I. FACTS¹

Ms. Luna began her employment with Walgreens in the liquor department of one of its stores in December of 1986. She later transferred to another Walgreens store (Store 2973) as a pharmacy technician, and while working at that store she became a certified pharmacy technician in 1999. Ms. Luna worked full time as a senior pharmacy technician, a position she held until her employment with Walgreens ended on August 14, 2006.

Ms. Luna suffers from degenerative joint disease, herniated disks, and knee problems. According to her deposition testimony, Ms. Luna testified that, at the relevant time of her employment, she could only stand for brief periods, "ten to fifteen minutes. I have to sit or my knee goes out." Upon further questioning, she stated that she could stand fifteen to twenty minutes. Ms. Luna alleges that her impairments prevent her from standing for long periods of time. Ms. Luna is currently employed at Publix and can now stand for a longer period of time. She has lost weight since her employment at Walgreens, a little more than forty pounds, and can now stand up to fifty minutes at a time, at which time she needs to move around.

Ms. Luna alleges that Walgreens accommodated her disability in the past by allowing her to use a chair, but ceased to accommodate her when the chair was removed from the pharmacy on August 2, 2006. Ms. Luna agrees that the use of chair was not introduced in the pharmacy as a result of a specific request she made, but points to several doctors' notes that pre-date August 2006, which she contends put Walgreens on notice of her disability. For example, prior to 2001, she gave a note from Dr. Sarnow to either the pharmacy manager or the store manager, stating that she should wear sneakers (which at that time was not allowed by Walgreens) because of her back condition. The note was produced when she was at Store 1600, before her transfer to the relevant Walgreens store (Store 2973), and she does not know if anyone at Store 2973 ever saw this note. Furthermore, prior to August of 2006, Ms. Luna presented a copy of an MRI to the store manager, Mr. Jagassar, for the purpose of communicating her condition and demonstrating that she needed to sit. Mr. Jagassar looked at the MRI and handed it back to Ms. Luna, but she does not know whether he communicated the contents of that report to anyone. Ms. Luna also points to three doctors' notes requesting she be excused from jury duty because she cannot sit or stand for long periods of time without changing positions. These notes, however, were written on April 23, 2001 and November 4, 2001. See Plaintiffs Statement of Disputed Facts, Exhibit 2.

Ms. Alfa King became Ms. Luna's store manager in July of 2006. On August 2, 2006, Ms. King removed the chair from the pharmacy. Ms. Luna alleges that the removal of the chair was the first act of discrimination. Because Ms. King could not find the jury duty letters, Ms. Luna gave them to her. When Ms. King reviewed the jury duty letters, she told Ms. Luna to bring updated medical information demonstrating her need to sit because the last documentation that referred to any knee and back problems was in November of 2004. Ms. Luna states that prior managers acknowledged her disability when she presented them the jury duty letters and did not require medical documentation.

On August 7, 2006, Ms. Luna requested, and Dr. Graves faxed, a letter to the Walgreens pharmacy, stating that as a result of her degenerative joint disease and several herniated disks in her back, as well as knee problems, she needed to sit at work.² Ms. Luna gave this note to Ms. King, who told her that she would review the note with Jorge Morales, her district manager, and get back to her. Ms. Luna says that she asked for the chair at that time and Ms. King said no. Between the removal of the chair on August 2 and her last shift on August 13, Ms. Luna worked a total of seven days in the pharmacy (August 2, 3, 4, 6, 7, 8, and 13). On August 5, 2006, she reported to work for the sole purpose of reviewing Walgreens' employment policies with Ms. King. On August 7 and 8 of 2006, Ms. Luna worked the shift from 9 a.m. to approximately 5 p.m.

On August 7, 2006, Ms. Luna also sent an email to Vanessa Sanders, District Pharmacy Training Coordinator, with copies sent to Bobby Espinosa, the District Pharmacy Supervisor. In her email, she stated that the chair was removed on August 2, that she had a medical condition which required her to sit, that she gave Ms. King copies of a current medical letter indicating her condition, and that she had requested to use the chair in the office but was denied. See Plaintiffs Statement of Disputed Facts, Exhibit 1. Ms. Luna never spoke to either Ms. Sanders or Mr. Espinosa. Although it is not clear from the record when, at some point Ms. Sanders left a message for Ms. Luna, stating that it was a personal matter and she wanted to talk to her. Ms. Luna did not respond to this call. She also did not contact Mr. Espinosa via phone and had no discussions with him about her need for a chair or her email.

After work on August 8, 2006, Ms. Luna went to an urgent care facility due to pain relating to her back and knee, and received a note excusing her from work for the next three days. After August 8, the next time she worked was Sunday, August 13, 2006. Although Ms. Luna was not allowed to use a chair in the pharmacy, on a few occasions she took a chair from the office and used it in the pharmacy. For example, on August 13, Ms. Luna brought a chair from the office and used it to work in the pharmacy. That same day, she sent an email to Mr. Morales, in which she made a formal request for accommodation—the use of a chair. She requested a response from Mr. Morales within five days.

The next day, Monday, August 14, Ms. Luna went to the EEOC office before reporting to work. She talked to an EEOC investigator, Ms. Bailey, and told her she was going to talk to her supervisor that day about her need for a chair. She reported for her shift at Walgreens and clocked in at 2:05 p.m. She went to the pharmacist and told her she was in pain from her back and knee, and was going to ask for a chair. She went to the office to get the chair, and while she was getting the chair, Ms. Brito, the hourly assistant manager on duty, came and asked her if she had obtained authorization from Ms. King to use the chair. Ms. Luna responded that she had not spoken to her, and Ms. Brito told her that she could not use the chair. According to Ms. Luna: "she [Ms. Brito] told me I couldn't have the chair; that it cause [sic] problems at work for taking the chair; and if I can't stand, punch out. And she shrugged her shoulders."³ Ms. Luna claims that she was in tears from the pain, "couldn't take the pain anymore," so she left, "went home and took some medication."⁴ She clocked out at 2:06 p.m., one minute later.

Ms. Luna's deposition testimony is unclear and somewhat inconsistent regarding the "punch out and go home" comment. In another part of her deposition, she testified to the following sequence of events. In her EEOC questionnaire, she wrote that on August 2, Ms. King removed the chair and asked for an updated letter explaining the circumstances of her condition. Ms. Luna asked Ms. King to accommodate her until August 6, at which point Ms. Luna would provide an updated medical note. Then either on August 6 or at some point after August 6, Mr. Cortes, another assistant manager, came to the pharmacy and told her that Ms. King said that "if you can't stand, punch out and go home."

It is not very clear if Ms. Brito told her on August 14, "if you can't stand, punch out and go home." Ms. Luna testified that she does not remember if Ms. Brito said "punch out and go home," on August 14, as Ms. Brito had made that comment to her previously. Ms. Luna states that Ms. Brito told her "to punch out and go home" at some point between August 2 and August 13, but she does not remember when. In any event, for the purposes of this motion, I assume that Ms. Brito told Ms. Luna "to punch out and go home" on August 14. Ms. Luna admits, however, that Ms. Brito did not have the authority to terminate her, expressly admitting that Ms. King has such authority. She testified, however, that she was in fear of her health and that is the reason she punched out. She concedes that no...