Rose v. Home Depot U.S.A., Inc., CIV. AMD 01-229.

• Citation: 186 F.Supp.2d 595
• Decision Date: 26 February 2002
• Docket Number: No. CIV. AMD 01-229.,CIV. AMD 01-229.
• Parties: Gary ROSE, Plaintiff v. HOME DEPOT U.S.A., INC., Defendant
• Court: U.S. District Court — District of Maryland

186 F.Supp.2d 595

Gary ROSE, Plaintiff v. HOME DEPOT U.S.A., INC., Defendant

No. CIV. AMD 01-229.

United States District Court, D. Maryland.

February 26, 2002.

Mary Ann Ryan, Laurel, MD, for Plaintiff.

Robert L. Duston, Schmeltzer Aptaker and Shepard PC, Washington, DC, for Defendant.

MEMORANDUM

DAVIS, District Judge.

Plaintiff, Gary Rose, brought this one-count action for compensatory and punitive damages against his former employer, Home Depot U.S.A., Inc., pursuant to the American with Disabilities Act, 42 U.S.C. § 12101 et seq., in the Circuit Court for Anne Arundel County, from which the case was timely removed by defendant to this court in accordance with 28 U.S.C. § 1441. Rose alleges that defendant violated the ADA by failing to accommodate a disability, namely, vasomotor rhinitis. Discovery has been completed and now pending, inter alia, is defendant's motion for summary judgment. The issues have been fully briefed, and no hearing is necessary. For the reasons set for below, I shall grant defendant's motion for summary judgment.

I.

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505. "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indust. Co v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987).

II.

An understanding of the proper legal outcome in this case requires the recitation of the detailed factual background out of which this case arises. Of course, the evidence must be viewed (and is recounted herein) in the light most favorable to Rose.

Rose's Early Employment with Home Depot

Rose was hired by Home Depot in January 1995 to work at the Special Services Desk. He was trained at the Home Depot in Oxon Hill, Maryland. Dep. of Gary Rose, October 9, 2001 at 45 (hereinafter Rose Dep.). Sometime within his first year at Home Depot, Rose transferred to the Millwork Department, which handles special ordering and installation of such products as windows, doors, siding, and shingles. Id. at 45-46. At that time, the Assistant Store Manager for the Millwork and Lumber Departments was Mark Edwards. Edwards Decl. ¶ 2. About a year after starting in the Millwork Department (early 1997), Rose became the Department Supervisor. Rose Dep. at 46.

Sometime around May 1998, Rose contacted Edwards, who had transferred to the Glen Burnie, Maryland, store in February 1997. Rose Dep. at 39-40; Edwards Decl. ¶¶ 2, 5. Rose asked Edwards to help Rose arrange a transfer from the Oxon Hill store to the Glen Burnie store. Rose Dep. at 39-40. Rose knew that such a transfer would result in his removal from a supervisory position, but Rose decided that he did not wish to remain as a Supervisor because it was too stressful. Id. at 47-48. Edwards contacted the Store Manager of the Glen Burnie store, who in turn spoke with the Store Manager at Oxon Hill, and Rose was permitted to transfer. Id. at 39-40, 51-52; Edwards Decl. ¶¶ 5-7.

Ordinarily, when an employee desires to transfer, he must contact either his current store manager or the Human Resources Manager. Edwards Decl. ¶ 6. An employee who wishes to transfer requires the approval of both his current Store Manager and the Store Manager at the new store. Once an employee asks for a transfer, the decision regarding whether a transfer is possible, and the initiation of the transfer process, are functions shared by the Store Managers of the two stores involved. The Store Manager at the employee's current store and the Store Manager at the transfer store communicate with each other to determine if the transfer is possible. Whether a transfer is possible is largely dependent on whether the Store Manager of the transfer store has work available for the employee seeking transfer. If both Store Managers agree to the transfer, the current Store Manager completes a form approving the transfer. The form is then sent to the transfer store. Id. Rose was aware that he did not follow the ordinary method of arranging a transfer in respect to his 1998 transfer from Oxon Hill to Glen Burnie. Rose Dep. at 51-52.

Rose worked at the Glen Burnie store from June 1, 1998, until July 26, 1999, when he began an extended leave of absence, as discussed infra. He alternated between the Lumber Department and the Millwork Department, two sister departments that were both overseen by Edwards. Id. at 56.

Rose's Ailments

Rose had begun to suffer from headaches and sinus infections in 1994. Rose Aff. ¶ 7. His physician, Dr. David Boetcher, referred Rose to a neurologist, Dr. Jerold Mikszewski. In September 1994, Rose told Dr. Mikszewski that he had suffered severe headaches two or three times per year that had been relieved with sleep and aspirin, but on this occasion his headache had lasted two weeks. Def.'s Ex. 6, at 1 (Medical Records of Dr. Jerold Mikszewski). Dr. Mikszewski tentatively diagnosed sinusitis, and a CT Scan indicated possible chronic sinusitis. Id. at 1-2. Rose was treated with several antibiotics, an antidepressant, Zoloft, and Tylenol. Id. at 1. Rose had several follow-up appointments with Dr. Mikszewski. Dr. Mikszewski's notes, dated October 3, 1994, indicate that Rose stated that his headaches came and went. Also, it appeared to Dr. Mikszewski that as Rose's stress increased so did his headaches. Id. at 3. During another visit (possibly October 18, 1994), Rose reported that he had had no headaches since his last visit, and the doctor noted that, since Rose started to take the medication prescribed to him, he had not had a headache. Id. at 4. During his visit on December 19, 1994, Rose related to Dr. Mikszewski that he had had a couple of minor headaches and one major headache since his last visit. Id. at 5. Dr. Mikszewski described these headaches as migraine headaches. Id. Rose did not continue to see Dr. Mikszewski because the doctor gave him a medication that needed to be injected, and Rose felt that he could not inject himself. Rose Dep. at 16-17; Baker Dep. at 37.

Between January 1995 and July 1999, Rose saw his family physician for his headaches and sinus problems. Rose Dep. at 17-18. Rose testified that it was not until 1996 that he began to suffer from headaches similar to the ones from which he presently suffers. Id. at 16. On May 22, 1996, Rose was diagnosed with bronchitis and sinusitis, and was given antibiotics and samples of Claritin D. Def.'s Ex. 5, at 7 (Medical Notes of Dr. David Boetcher, Dr. Katherine David, and Dr. Steven Schwartz). In September 1996, Rose suffered again from sinusitis and was given Claritin D and Vancenase (a cortisone nasal spray). Id. at 8. The record does not show that Rose suffered from sinus problems in 1997. Throughout 1998, Rose suffered from osteoarthritis and gastrointestinal problems that led to gallbladder surgery. Id. at 10-16. In April 1998, Rose was referred to Dr. David Borenstein, complaining of pain in his knees and elbows that had gone on for two years. Def.'s Ex. 8. According to the medical history taken by Dr. Borenstein, Rose reported having a history of occasional migraine headaches. Id. at 2.

Rose testified that his family physician began treating him for sinusitis in 1996. Rose Dep. at 17. He would suffer from congestion and headaches and would take over-the-counter sinus medications until he became infected and had to see his doctor to receive antibiotics. Id. at 18. According to Rose, in his perception, this would happen about 10 or 12 times a year. Id. at 19. Rose further stated that from 1996 through 1999, the sinus infections became increasingly worse. Id. at 20. He fought the sinus infections with both over-the-counter medications and then antibiotics. Id. at 21. The antibiotics would clear up the congestion, but the headaches would continue on a periodic basis (once or twice a month), for which he would use Tylenol, but mostly Advil (up to 12 tablets a day when the headache was at its fullest). Id. at 21-22. According to Rose's wife, Shirley Baker, it would take seven to ten days for the antibiotics to take effect. Baker Dep. at 85. Despite these circumstances, Rose rarely missed work; he would be absent at most a few days. Id. at 44-48; Rose Dep. at 129....