Elledge v. Lowe's Home Ctrs., LLC

CHARLES J. ELLEDGE, Plaintiff, v. LOWE'S HOME CENTERS, LLC, Defendant.

5:16-cv-00227-RJC-DCK

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION

December 20, 2018

ORDER

THIS MATTER comes before the Court upon Defendant Lowe's Motion for Summary Judgment, (Doc. No. 36); Plaintiff's Response in Opposition, (Doc. No. 51); Defendant's Reply, (Doc. No. 56); and the parties supporting exhibits. Also before the Court is Plaintiff's Motion to Strike Supplemental Disclosures and Related Motions, (Doc. No. 40); Defendant's Response in Opposition, (Doc. No. 47); and Plaintiff's Reply, (Doc. No. 49). For the reasons set forth below, Defendant's Motion for Summary Judgment is GRANTED, and Plaintiff's Motion to Strike is DISMISSED as moot.

I. BACKGROUND

The record establishes, the parties agree, and/or the parties do not dispute the following.

A. Plaintiff's Employment History and Position at Lowe's

Plaintiff began working at Lowe's in 1993 and retired in 2015. (Doc. No. 52 ¶ 1). From 1994 to 2008, Plaintiff climbed the corporate ranks and was eventually promoted to the position of Market Director of Stores (then called "district manager") in 2008. (Id. ¶¶ 2-6). Plaintiff was assigned to Market 1347, which had eight stores at the time. (Id. ¶ 8). This was the last position Plaintiff held at Lowe's before he retired in 2015. Market 1347 was comprised of twelve stores in Western North Carolina at the time Plaintiff retired. (Id. ¶ 9).

Market Directors ("MDs") are "ultimately responsible for overall store performance within their Markets with a primary focus on sales and profitability." (Doc. No. 39-14 at 2). This position requires MDs to frequently visit the stores in their market and, when visiting a store, "generally do a walk-through of the store to evaluate the merchandise, appearance, and talk with the staff." (Doc. No. 55 at 4). According to Plaintiff, Plaintiff regularly reviewed reports concerning each store's performance, traveled to the stores within his market, met with store managers and other personnel, and advised them on how to enhance the store sales and profits. (Doc. No. 53 ¶ 7). For each store, Plaintiff would spend approximately 1 hour in the office reviewing reports with the store manager and the remaining 2 or 3 hours on the floor. (Id. ¶ 35). Plaintiff usually visited two stores in one day and returned home later in the evening. (Id.). Plaintiff spent approximately 8 to 10 hours per day in the stores and 1 to 2 hours per day driving between stores, averaging 50 to 60 hours of work per week. (Id. ¶ 9).

B. Onset of Plaintiff's Disability and Limitations at Work

On December 29, 2014, Plaintiff had knee replacement surgery on his right knee. (Doc. No. 53 ¶ 14). This was his fourth knee surgery. (Id. ¶ 12). Prior to hissurgery, Plaintiff applied for a leave of absence with Defendant, which was approved in early December 2014. (Id. ¶ 13). Defendant was out of work from December 29, 2014 through April 12, 2015. (Doc. No. 52 ¶ 60). Plaintiff's FMLA leave expired on March 22, 2015, but, as an accommodation, Defendant provided Plaintiff a personal leave of absence for an additional two weeks through April 12, 2015. (Id. ¶63).

On March 24, 2015, Plaintiff reported to Dr. Anderson's office that he was concerned "over how much pain he still [had]" and "he [was] unsure if he [could] do his job" because "he drives an hour and a half to work then stands on the floor for 10-12hrs and drives back." (Doc. No. 52 ¶ 64). On April 1, 2015, Plaintiff saw Dr. Anderson for a follow-up visit and told Dr. Anderson that he felt "he [could] return to work 8-hour shifts with 50 percent standing only." (Id. ¶ 67). Dr. Anderson recommended that Plaintiff should be restricted to 8-hour days, including travel, and 4 hours of standing and walking. (Doc. No. 53 ¶ 20). Plaintiff usually worked more than this. (Doc. No. 52 ¶¶ 74-76). Dr. Anderson noted that the restrictions would be reevaluated in 6 months. (Id. ¶ 73).

Plaintiff submitted Dr. Anderson's restrictions to Defendant, and the Lowe's Accommodations Team approved the restrictions and memorialized the approved restrictions and accommodations by an Interactive Process Form sent to Plaintiff on April 16, 2015. (Doc. No. 53 ¶ 23). This form described the accommodations being offered to Plaintiff as follows:

The following restrictions will be accommodated: Light duty to include, lifting no greater than 15 lbs, limit 8 hour work day, to include travel;standing/walking limited to 4 hr/per day. The use of a mobility device will be permitted in performing job duties. This accommodation is approved for a period of 60 days and will be reviewed at that time.

(Doc. No. 39-23). Plaintiff claims that he does not recall discussing or considering the use of a mobility device when he first returned to work and asserts that even though it was offered on the Interactive Process form, he did not believe he needed one and would not have expected to use one at that point given that his restrictions were approved. (Doc. No. 53 ¶ 25).

Plaintiff resumed his job duties from April 13 to June 30, 2015, and he estimates that, during this time, he adhered to Dr. Anderson's restrictions approximately 75% of the time, sometimes working longer hours and walking and standing in excess of his restrictions. (Doc. No. 53 ¶ 26). Plaintiff also would have the area team member traveling with him on the store visit drive the vehicle to and from stores so that he could rest his knee. (Id. ¶ 27). On June 1, 2015, the Accommodations Team again reviewed Plaintiff's accommodations and extended them for a period of six months to October 13, 2015. (Id. ¶ 28). The Interactive Process Form approving and extending his restrictions granted him the same restrictions as before and again specified that "Mr. Elledge will be permitted the use of a mobility device to assist in the performance of assigned duties." (Doc. No. 39-26). Plaintiff admits that he knew there were two motorized scooters in most stores and "vaguely remember[s]" a mention of mobility device on the June 1, 2015 form, but testified that he "didn't need one then and [he] would have never asked for one, and [he] just didn't need it." (Doc. No. 39-1 at 49-50).

On July 1, 2015, Plaintiff saw Dr. Anderson for his six-month check-up post-surgery. (Doc. No. 53 ¶ 30). Dr. Anderson noted that Plaintiff was improving, (Doc. No. 39-17 at 20-22), but also recommended that Plaintiff continue restrictions at work for another six months. (Doc. No. 39-17 at 20-22). Dr. Anderson certified Plaintiff's application for a handicap placard for his car. (Doc. No. 53 ¶ 32). Plaintiff forwarded Dr. Anderson's notes from the July 1, 2015 examination to (1) Hollie Reinhart, a Regional Human Resources Director in Plaintiff's region; (2) Julie Broombaugh, a member of the Accommodations Team; and (3) Laura Dover, the Regional Administrative Specialist for Plaintiff's region. (Doc. No. 52 ¶ 109; Doc. No. 39-29 at 2). In the email, Plaintiff noted that Dr. Anderson "was not very encouraged, as standing and walking is not helping with the pain or recovery. He also issued a permanent 'disabled parking' permit form." (Id.) The Accommodations Team approved his restrictions for an additional six months, through January 1, 2016. (Doc. No. 53 ¶ 33). Plaintiff signed an Interactive Process Form 7, which, this time, did not contain the prescription that Plaintiff could use a mobility device.¹ (Doc. No. 29-30 at 2).

On July 9, 2015, Broombaugh forwarded the signed Interactive Process Form to Reinhart who responded that she "would like to review this with [Broombaugh] before extending" because Reinhart "just learned of some information that may change this approval." (Doc. No. 39-31 at 2). According to Reinhart, Reinhart andDelno Dryden, the Vice President of Store Operations for Plaintiff's region, were concerned that Plaintiff's medical restrictions were permanent due to Plaintiff's reference to a permanent handicap placard. (Doc. No. 52 ¶ 116). Subsequently, Broombaugh contacted Dr. Anderson's office to inquire if Plaintiff's restrictions were permanent and indicated that Plaintiff had said his restrictions were permanent.² (Doc. No. 53 ¶ 36). In response, Dr. Anderson responded that he recommended these be permanent restrictions. (Doc. No. 39-62 at 2).

On July 17, 2015, Dryden, Reinhart, and Elledge met to review Plaintiff's accommodation request so that they could "make sure [they] support[ed] [his] needs appropriately." (Doc. No. 39-33 at 2). Plaintiff testified that, during the meeting, Dryden and Reinhart were supportive and seemed concerned about Plaintiff's knee, did not question him about his willingness to work or his ability or performance, and instead asked what they could do to help him. (Doc. No. 53 ¶ 40). During the conversation, Plaintiff told Dryden and Reinhart that he had looked at corporate job postings to see if there was another position that would allow him to continue his career while also taking care of his knee. (Doc. No. 53 ¶ 40). Dryden and Reinhart told Plaintiff that they could help him investigate other positions if that was something he wanted to pursue. (Doc. No. 52 ¶ 138). Plaintiff, Dryden, and Reinhart discussed Plaintiff remaining in his MD role for six months and transitioning him to a different role after this time. (Id. ¶ 143).Plaintiff thought the meeting was the "start of a really good interactive dialogue between the three of [them]" and described the conversation as a "meaningful dialogue" between the parties. (Doc. No. 52 ¶ 135).

Dryden, Reinhart, and Plaintiff met again on August 3, 2015. (Doc. No. 52 ¶ 45). Dryden and Reinhart informed Plaintiff of the different options available to him and informed Plaintiff that he had thirty days to find another position. (Doc. No. 52 ¶ 153). On August 3, 2015, Reinhart sent Plaintiff an email, copying Dryden, that recapped the meeting: the email confirmed that

(1) Plaintiff had a 30-day

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