UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kimberly Eldredge

v. Case N o . 08-cv-188-PB Opinion N o .

Walgreens Co.

MEMORANDUM AND ORDER

Kimberly Eldredge, a former employee of Walgreens, has sued

Walgreens under the Americans with Disabilities Act (“ADA”).

Eldredge alleges that Walgreens violated the ADA when it refused

to reinstate her as an assistant manager at Walgreens while she

was under light-duty work restrictions related to a back injury.

Walgreens has moved for summary judgment on several grounds,

alleging that Eldredge has failed to satisfy her burden of proof.

I grant Walgreens’ motion because Eldredge cannot establish that

she is disabled within the meaning of the ADA.

I. BACKGROUND

Eldredge was employed as an assistant manager at various

Walgreens stores throughout New Hampshire and Massachusetts

beginning in 1990. (Def.’s Statement of Material Facts, Doc. N o . 12-3, ¶¶ 13-14.) 1 In February 2002, Eldredge injured her lower

back while constructing a seasonal display at Walgreens, and was

diagnosed with back strain. Following a leave of absence,

Eldredge returned to work with “light duty” restrictions until

her physician released her to full-time, full-duty work in

August 2002. (Compl., Doc. N o . 1 , ¶¶ 10-11; Def.’s Statement of

Material Facts, Doc. N o . 12-3, ¶¶ 25-27.)

1 Walgreens argues that this court must accept as true all facts contained in its statement of material facts because Eldredge failed to include her own statement of material facts when she objected to Walgreens’ motion for summary judgment, in violation of Local Rule 7.2(b)(2). (See Def.’s Reply Mem. in Further Supp. of Mot. for Summ. J., Doc. N o . 2 3 , at 2-3.) Local Rule 7.2(b)(2) states:

A memorandum in opposition to a summary judgment motion shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to require a trial. All properly supported material facts set forth in the moving party’s factual statement shall be deemed admitted unless properly opposed by the adverse party.

D.N.H. R. 7.2(b)(2). Although Eldredge did not include a separate statement of material facts with her objection, she identified disputed material facts and supported her version of the disputed facts in the memorandum she submitted in support of her objection. (See Pl.’s Mem. of Law in Supp. of Mot. for Summ. J., Doc. N o . 16-2.) This is minimally sufficient. I will not read Rule 7.2(b)(2) so narrowly as to warrant the automatic admission of Walgreens’ asserted facts on the basis that Eldredge did not assert her arguments in a separate document formally titled “statement of material facts.”

-2- Eldredge’s back pain returned in August 2003, forcing her to

leave work at a Walgreens in Londonderry, New Hampshire on unpaid

disability leave. Eldredge’s physician determined that she

required lumbar fusion surgery, and she underwent surgery in

October 2003. (Compl., Doc. N o . 1 , ¶ 1 2 ; Def.’s Statement of

Material Facts, Doc. N o . 12-3, ¶¶ 2 8 , 32.) Following a period of

recuperation, Eldredge’s physician allowed her to return to work

with “light duty” restrictions in August 2004. (Compl., Doc. N o .

1 , ¶ 13.) These restrictions allowed Eldredge to “resume full

time work duty” with the limitations that she not lift more than

20 pounds or engage in repetitive bending. (Def.’s Statement of

Material Facts, Doc. N o . 12-3, ¶¶ 28-29; Def.’s Ex. 1 2 , Doc. N o .

12-6.) Eldredge met with Walgreens District Manager Anna

O’Herren in August 2004 to agree on the job functions of the

assistant manager position that she would be able to perform

while under the restrictions of her physician’s release. (Def.’s

Statement of Material Facts, Doc. N o . 12-3, ¶ 30.) In

September 2004, Eldredge returned to work as an assistant manager

at Walgreens, this time at a store in Manchester, New Hampshire,

where she was able to work without exceeding the restrictions of

her physician’s release. (Id. ¶ 31.)

-3- Within several weeks of returning to work, Eldredge

experienced difficulty performing her job due to her injury.

Eldredge’s physician placed more restrictive conditions on her

work activities, including a five-pound weight-lifting limit and

instructions to further limit bending and stretching. (Id. ¶ 3 5 ;

see Def.’s Ex. 1 4 , Doc. N o . 12-6.) Once again, Eldredge met with

O’Herren to determine which of the functions of the assistant

manager position she would be able to perform under these

restrictions. After about five weeks of attempting to work under

the five-pound weight restriction, Walgreens informed Eldredge

that the restrictions made it impossible for her to effectively

perform her job as an assistant manager. (Def.’s Statement of

Material Facts, Doc. N o . 12-3, ¶¶ 37-39.) Eldredge’s physician

was also concerned that she might exacerbate her injury if she

continued to work, and provided Eldredge with a letter stating

that she should remain out of work until further notice. (Id.

¶ 4 1 ; see Def.’s Ex. 1 5 , Doc. N o . 12-6.) Eldredge went on unpaid

leave in October 2004, and remained out of work for over a year.

(Def.’s Statement of Material Facts, Doc. N o . 12-3, ¶ 42.)

In July 2005, Eldredge contacted Lora Wolfe, a Walgreens

Employee Relations Representative, and informed her that she had

been released by her physician to return to work, subject to

-4- light-duty work restrictions. The restrictions were similar to

the restrictions appearing in her August 2004 work release: a

maximum twenty-pound weight-lifting limit, and instructions to

alternate between sitting, standing, and walking every thirty

minutes. (See id. ¶¶ 44-45; Def.’s Ex. 1 6 , Doc. N o . 12-6.) On

August 1 8 , 2005, Eldredge had a telephone conversation with

O’Herren about her return to work. In that conversation,

O’Herren informed Eldredge that Walgreens was unable to

accommodate Eldredge with the restrictions placed upon her by her

physician, as she would be unable to perform the essential

functions of any store position. (Def.’s Statement of Material

Facts, Doc. N o . 12-3, ¶ 51.) O’Herren memorialized this

conversation in an email to Eldredge on August 2 3 , 2005, in which

she reiterated that Walgreens was unable to accommodate Eldredge

at that time, and instructed Eldredge to contact her when the

restrictions had been lifted. (See Def.’s Ex. 1 8 , Doc. N o . 12-

6.) Eldredge was terminated in November 2005.2

2 The parties dispute whether Eldredge was actually “terminated” in the sense required by the ADA. Walgreens contends that Eldredge was simply “administratively coded off of Walgreens’ computer system because she had been out on disability leave for a one-year period,” and argues that Eldredge was free to return to work once her physician’s physical restrictions had been lifted. Walgreens asserts that this is a standard policy that applies to any Walgreens employee who takes a leave of absence that exceeds one year. (See Def.’s Statement of Material

-5- On March 3 1 , 2006, Eldredge’s counsel wrote to Walgreens’

counsel and asserted that Walgreens had violated the ADA when it

effectively terminated Eldredge at the culmination of her one-

year period of leave on November 5 , 2005. (See Def.’s Ex. 2 7 ,

Doc. N o . 12-6.) Upon Walgreens’ continued refusal to reinstate

Eldredge as a Walgreens employee, Eldredge filed a disparate

treatment claim under the ADA alleging that Walgreens terminated

her because it “regarded her as disabled or because she had a

record of disability.” (Compl., Doc. N o . 1 , ¶ 21.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when “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). A party seeking summary judgment must first identify the

absence of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

Facts, Doc. N o . 12-3, ¶ 65.) Eldredge counters that this constituted an adverse action within the meaning of the ADA. (See Def.’s Ex. 2 7 , Doc. N o . 12-6, at 2.) Because I determine that Eldredge is not entitled to relief because she cannot prove that she is disabled, I need not decide whether she has offered sufficient evidence of an adverse employment action.

-6- nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

The ADA prohibits discrimination against a “qualified

individual with a disability because of the disability of such

individual in regard to . . . terms, conditions, and privileges

of employment.”

(a) (2009). A “qualified

individual” under the ADA is one “able to perform the essential

functions of [her position] with or without reasonable

accommodation.” Ward v . Mass. Health Research Inst., Inc.,

9 , 33 (1st Cir. 2000). To establish a prima facie case of

disparate treatment under the ADA, a plaintiff must prove “(1)

that [she] is disabled within the meaning of the ADA, (2) that

[she] was able to perform the essential functions of the job with

or without reasonable accommodation, and (3) that [she] was

discharged or adversely affected, in whole or in part, because of

-7- her disability.”3 Ruiz Rivera v . Pfizer Pharm., LLC,

6 , 82 (1st Cir. 2008). If the plaintiff establishes her prima

facie case, the employer must come forward with evidence of a

legitimate, non-discriminatory reason for its decision, at which

point the plaintiff must prove that the “non-discriminatory

justification is mere pretext cloaking discriminatory animus.”

See Freadman, 484 F.3d at 102.

In order to prove that she is “disabled” within the meaning

of the ADA, a plaintiff must demonstrate that she “(a) has a

physical or mental impairment that substantially limits one or

more of her major life activities; (b) has a record of such

impairment; or (c) is regarded as having such an impairment.”

Ruiz,

(citing Bailey v . Georgia-Pacific Corp.,

(1st Cir. 2002); see also

(2)

(2009);

(g) (2009). Walgreens argues in its

motion for summary judgment that Eldredge cannot establish that

3 Eldredge does not assert a failure to accommodate claim. (See Compl., Doc. N o . 1 , ¶¶ 21-23.) Even if Eldredge had argued that Walgreens violated the ADA in failing to accommodate her alleged disability, however, her claim would fail, as a plaintiff still must prove that she was disabled within the meaning of the ADA in order to survive summary judgment on an accommodation claim. See Freadman v . Metro. Prop. & Cas. Ins. Co.,

1 , 102 (1st Cir. 2007). Because I find that Eldredge has not sufficiently established that she was “disabled” under the ADA, it would be futile to allow her to amend her complaint to assert an accommodation claim.

-8- she is disabled under this standard. (See Def.’s Mem. of Law in

Supp. of Mot. for Summ. J., Doc. N o . 12-2, at 18-19.) Eldredge

responds by contending that she meets the ADA's test of

disability because she was “regarded as” disabled by Walgreens.

(See Pl.’s Objection to Def.’s Mot. for Summ. J., Doc. N o . 1 9 , at

17-18.)

An employee can demonstrate that her employer regarded her

as disabled where: “(1) [the employer] mistakenly believe[d]

that [the employee] ha[d] a physical impairment that

substantially limit[ed] one or more major life activities, or (2)

[the employer] mistakenly believe[d] that an actual, non-limiting

impairment substantially limit[ed] one or more major life

activities.” Sullivan v . Neiman Marcus Group, Inc.,

(1st Cir. 2004) (quoting Sutton v . United Air Lines,

Inc.,

7 1 , 489 (1999)). 4 Eldredge admits that she

4 While I note that the ADA Amendments Act of 2008, Pub. L . N o . 110-325,

, 3553-55 (2008) (“ADA Amendments Act”), became effective on January 1 , 2009 and expanded the definition of “disability” beyond the Supreme Court’s interpretation in Sutton and Toyota Motor Mfg., Kentucky., Inc. v . Williams,

(2002) (discussed infra), numerous courts have held that the ADA Amendments Act does not apply retroactively. See, e.g., Thornton v . UPS, Inc., N o . 08-2162,

(1st Cir. Nov. 1 2 , 2009); E.E.O.C. v . Agro Distribution, LLC,

6 2 , 469 n.8 (5th Cir. 2009); Fournier v . Payco Foods Corp.,

(D.P.R. 2009); Geoghan v . Long Island R.R., N o . 06-cv-1435,

, at *8-9 (E.D.N.Y. Apr. 9, 2009); see also

-9- suffers from an actual impairment, but argues that it is non-

limiting. Thus, the relevant inquiry is whether Walgreens

mistakenly believed that this impairment “substantially

limit[ed]” her ability to engage in at least one major life

activity.

Eldredge has not sustained her burden of proof with respect

to her “regarded as” claim for two reasons. First, Eldredge

fails to identify a “major life activity” that Walgreens

allegedly regarded as being substantially limited by her

impairment. Supreme Court precedent suggests that “regarded as

claims under the ADA require an even greater level of specificity

than other claims” and, at a minimum, an employee must identify

the major life activity on which her “regarded as” claim is

based. Ruiz,

(citing Sutton, 527 U.S. at 489-91).

Nowhere in her complaint or her objection to Walgreens’ motion

does Eldredge identify the major life activity on which her claim

is based. Thus, Walgreens is entitled to summary judgment on

this basis alone.

Rivers v . Roadway Exp., Inc.,

9 8 , 313 (1994)(finding that where Congress passes an interpretative or restorative statute, its “intent to reach conduct preceding the ‘corrective’ amendment must clearly appear”). Since the relevant conduct in the present case occurred between February 2002 and March 2006, I need not consider whether the ADA Amendments Act alters the analysis of Eldredge’s claim.

-10- Second, Eldredge cannot prevail even if I generously

construe her pleadings to state that Walgreens regarded her as

substantially limited in her ability to work, the only “major

life activity” that could possibly support her claim. Where the

major life activity under consideration is work, “the inability

to perform a single, particular job does not constitute a

substantial limitation.”

(j)(3)(i).5 Rather,

an employee must demonstrate

not only that the employer thought that [she] was impaired in [her] ability to do the job that [she] held, but also that the employer regarded [her] as substantially impaired in either a class of jobs or a broad range of jobs in various classes as compared with the average person having comparable training, skills, and abilities.

Sullivan,

(quoting Murphy v . United Parcel Serv.,

Inc.,

(1999)); see

(j)(3)(i).

In the present case, the only evidence in the record that

even arguably supports Eldredge's claim that Walgreens regarded

her as being unable to work is O’Herren’s August 2 3 , 2005 email.

5 Both the Supreme Court and the First Circuit have assumed, without deciding, that work is a major life activity within the meaning of the ADA. See, e.g., Sutton,

; Sullivan,

(1st Cir. 2004); Whitlock v . Mac-Gray, Inc.,

4 , 46 n.1 (1st Cir. 2003); see also 29 C.F.R. 1630.2(i). For the purpose of summary judgment I will assume, as the Supreme Court and the First Circuit have, that work qualifies as a “major” life activity under the ADA. -11- In that email, O’Herren asserted that the limitations outlined by

Eldredge’s physician in July 2005 restricted her from performing

“the essential functions of any store position.” (Def.’s Ex. 1 8 ,

Doc. N o . 12-6, ¶ 3.) Presumably, Eldredge offers the email in an

effort to establish that Walgreens regarded her as being unable

to work in a broad range of jobs in various classes. The

difficulty with this argument, however, is that it is based on a

mistaken premise. “The regarded as prong of the ADA exists to

cover those cases in which myths, fears and stereotypes affect

the employer’s treatment of an individual.” Ruiz,

. Where, therefore, an employer’s perception of an employee’s

impairment is based “not on speculation, stereotype, or myth, but

on a doctor’s written restrictions,” a finding that the employee

was “regarded as” disabled is inappropriate; consequently, an

employee “may not rely exclusively on her employer’s recognition

or implementation of the restrictions imposed by her own

physician to establish a regarded as claim.”

at 86 (citing

Wooten v . Farmland Foods,

8 2 , 386 (8th Cir. 1995)); see

also Lusk v . Ryder Integrated Logistics,

(10th Cir. 2001) (no evidence that employer regarded employee as

disabled where it believed that employee’s impairment prevented

him from performing a job that required lifting in excess of his

-12- physician’s restrictions, but did not misperceive the extent of

the employee’s limitation); Brunko v . Mercy Hosp.,

(8th Cir. 2001) (employer did not regard employee as disabled

when it asserted that she would be incapable of performing “any

staff nursing work at the hospital,” as this perception “was not

based on any myths or archaic attitudes about the disabled,” but

employee’s own treating physician’s recommendations). Here,

Eldredge relies entirely upon an email that merely recites

Walgreens’ understanding of and inability to implement the

restrictions that her own physician prescribed. O’Herren’s email

contains no trace of speculation, myth, or stereotype regarding

Eldredge’s diagnosed condition; rather, it merely advises that

Eldredge could not return to work while under those particular

restrictions. (See Def.’s Ex. 1 8 , Doc. N o . 12-6, ¶ 3.) In fact,

O’Herren’s email implies that Eldredge would be able to return to

work as soon as those restrictions were lifted. (See Def.’s

Ex. 1 8 , Doc. N o . 12-6, ¶ 3 (“I advised you that the most

important aspect at this point is your health and well-being and

for you to contact me once your restrictions have been

lifted.”).) A reasonable juror could not possibly find that this

email was based upon the “myths, fears, and stereotypes”

surrounding Eldredge’s condition when it merely addressed the

-13- restrictions that Eldredge herself presented as facts,

particularly in lieu of Walgreens’ apparent willingness to

reinstate her in the absence of those restrictions. See Ruiz,

3 ; Lusk,

. As such, in the absence

of any additional evidence, Eldredge’s “regarded as” claim must

fail.

IV. CONCLUSION

For all of the foregoing reasons, Walgreens’ motion for

summary judgment (Doc. N o . 12) is granted. The clerk is directed

to enter judgement and close the case.

SO ORDERED

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 1 1 , 2009

cc: Jared P. O’Connor, Esq. Gregory A . Manousos, Esq. Mark M . Whitney, Esq.

-14-