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Buser v. Eckerd Corporation

United States District Court, E.D. North Carolina, Western Division

February 2, 2015

JAMES BUSER, Plaintiff,


LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on the parties' cross-motions for summary judgment. (DE 83, 85, 87). The issues raised have been fully briefed and are ripe for ruling. For the reasons stated more specifically herein, the court grants in part and denies in part both plaintiff's partial motion for summary judgment and the motion for summary judgment of defendant Eckerd Corporation, d/b/a Rite Aid Pharmacy, a subsidiary of Rite Aid Corporation ("Rite Aid"). The court grants the partial motion for summary judgment of defendant Prudential Insurance Company of America ("Prudential").


On November 19, 2012, plaintiff, who worked as a pharmacist for defendant Rite Aid at its Holly Springs, North Carolina location, brought this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq . In plaintiff's third amended complaint he alleges that defendant Rite Aid violated the ADA by failing to reasonably accommodate his alleged disabilities, including tremors and an inability to bend or stoop, accruing from Parkinson's disease, and a hip condition (Count 1). Further, he contends defendant Rite Aid retaliated against him by firing him after he requested an accommodation for his alleged disabilities (Count 2). Plaintiff also alleges that defendants Rite Aid and Prudential wrongfully denied his claim for short term disability ("STD") benefits in violation of ERISA, or, in the alternative, breached their contract that entitled plaintiff to receive those benefits (Counts 3 and 5). Plaintiff also seeks recourse against defendant Prudential for its denial of long term disability ("LTD") benefits (Count 4).

After a period of discovery in the case, plaintiff seeks summary judgment on Counts 1, 3, 4, and 5 in their entirety. In addition, plaintiff seeks summary judgment on a discrete issue bearing on Count 2.[1] Defendant Rite Aid moves for summary judgment on all claims against it, including Counts 1 through 3 and Count 5.[2] Lastly, defendant Prudential seeks partial summary judgment. Specifically, defendant Prudential moves for summary judgment on Count 4, wrongful denial of LTD benefits. It does not, however, seek summary judgment on Counts 3 or 5.[3]


Plaintiff was a staff pharmacist at defendant Rite Aid's Holly Springs, North Carolina, location until September 8, 2011, when he was terminated. At the time of his termination, plaintiff had been employed by defendant Rite Aid, or a predecessor of Rite Aid, since at least 1987. (Buser Dep. 20:25-21:3). He had been employed at the Holly Springs location since 2000. As a staff pharmacist it was plaintiffs' job to read and enter prescriptions, verify drugs and directions, call physicians for clarification as needed, consult with customers, call insurers and handle other issues that arose in the pharmacy. (Buser Dep. 42:16-25 & Ex. 41). In early 2011, defendant Rite Aid added a new job responsibility and began requiring all pharmacists to administer immunizations. (Compl. ¶¶64-65).

Defendant Rite Aid is a large retail pharmacy. It owns approximately 4, 500 stores, which employ approximately 10, 000 pharmacists. (Strauss Decl. ¶3). Defendant Rite Aid offers unemployment benefits to its employees in the form of STD and LTD benefits. (SCB Brochure, DE 88-41; Group Insurance Contract, DE 88-42). Those plans are administered by defendant Prudential consistent with the terms of the ASA, a contract between defendants establishing defendant Prudential as the claims administrator. (See ASA, DE 88-55). Defendant Prudential also insures defendant Rite Aid's LTD benefit program. However, defendant Rite Aid's STD benefits program is uninsured and paid out of defendant Rite Aid's general assets. (Kazmaier Decl. ¶4).

During plaintiff's employment with defendant Rite Aid, he experienced a number of physical impairments including tremors, high blood pressure, mild colitis, ankylosing spondylitis, difficulty hearing, drowsiness, and osteoarthritis. (Buser Dep. 23:9-10; see also DE 88-20, 21, 22). Of particular importance to the instant case are plaintiff's tremors and osteoarthritis. With respect to his tremors, plaintiff experienced symptoms in both hands. (Buser Dep. 169:22-170:21). However, plaintiff's tremors were more severe in his dominant, right hand. (Id.). In 2009, plaintiff was diagnosed with Parkinson's disease, but, by December 2010, plaintiff's doctor had qualified his initial diagnosis of Parkinson's due to certain irregularities in the progression of plaintiff's symptoms. (Id. at 74:16-75:3). Pertinent to plaintiff's osteoarthritis, his condition primarily affected his hip. (DE 88-23, at 2). In May 2011, plaintiff received a left hip replacement. (Id.). Thereafter, plaintiff took a leave of absence from Rite Aid and did not return until August 2011. (Buser Dep. 40:13-16).

In 2011, plaintiff's employment with defendant Rite Aid underwent two changes relevant to the issues before the court. First, in early 2011, defendant Rite Aid began requiring its pharmacists nationwide administer certain immunizations, including the flu vaccine. (Strauss Dep. 71:8-21). Second, defendant Rite Aid adopted new pharmacy hours.

With respect to the first change, defendant Rite Aid hoped to have each pharmacist administer 150 flu vaccines by the end of the 2011 flu season. (Buser Dep. 253: 8-17). When compared with the number of prescriptions a pharmacist was expected to fill in a year, the flu shot would have accounted for less than one percent of plaintiff's job. (Id.).

Administration of immunizations was a five step process. First the patient would fill out a questionnaire. Second, the pharmacist would review the questionnaire. Third, the pharmacist used the questionnaire to create a customer profile. Fourth, the pharmacist would bill the vaccine to insurance. And fifth, the pharmacist would administer the injection. (DE 88-23, at 2). However, before a pharmacist could be eligible to administer immunizations, he or she was required to pass an immunization certification. (DE 84-3). Defendant Rite Aid established July 2011 as the deadline to complete training. (Id.).

The course consisted of two components, each of which addressed a necessary aspect of immunization certification. (DE 88). First, each pharmacist was required to administer an immunization using a needle while under supervision. (Buser Dep. 90:13-91:1). In addition, the pharmacists were required to receive CPR certification. (Id. 90:3-20). The North Carolina Board of Pharmacy required pharmacists who administered immunizations be certified to administer CPR, in the event a patient suffered an adverse reaction. (Id. 128:2-18).

In February 2011, shortly after defendant Rite Aid announced the program to its pharmacists, plaintiff expressed concerns about his ability to administer injections to district manager Jin Lee. (Id. 89:2-24). In a series of emails, Lee told plaintiff to complete the training. Lee further told plaintiff to have his doctor write a note excusing him from administering immunizations. (Id. 75:17-21). Plaintiff did not provide Lee with a doctor's note prior to his training and successfully completed both components immunization training on April 5, 2011. (Id. 77: 13-18; 93:1-4). However, at training, plaintiff experienced tremors and had to stabilize his right hand using his left hand to properly administer the injection. (Buser Dep. 91:5-12). In addition, after his May 2011, hip replacement, plaintiff lost his ability to bend or stoop, which rendered him unable to administer CPR. (Id. 127:10-18).

Regarding the second change, beginning in August 2011, the Holly Springs location adopted new operating hours. From 2009 until August of 2011, the Holly Springs Rite Aid store had been an "extended hours" pharmacy. (Id. 31:3-10; 32:17-21). As an extended hours pharmacy, the store was regularly open 14 hours per day.[4] (Id.). But, in August 2011, the pharmacy reduced its operating hours to 12 per day. (Buser Dep. 31:13-16; 100:10-21; 161:15-18). This revised schedule mirrored the schedule employed by a majority of North Carolina Rite Aid stores and all Rite Aid stores close to the Holly Springs location. (Strauss Dep. 123:1-12).

While operating as an extended hours pharmacy, Rite Aid's Holly Springs location employed three pharmacists. (Buser Dep. 34:4-7; 35:15-20). Two of the pharmacists, including plaintiff, were full-time. (Id. 34:4-17). The other pharmacist worked part time. (Id.). The three pharmacists divided the 14 hour day such that plaintiff worked approximately six to 10 hours each day. (Id. 35:21-36:7). In 2011, since the pharmacy reduced its operating hours, the pharmacists also changed their schedules. (Id. 38:7-12). The store only required two full-time pharmacists, each of whom was to work a full 12 hour shift. (Id.; Rup Dep. 48:7-11; 50:13-16). The part-time pharmacist previously employed at the Holly Springs location was moved to a different location, which required additional help due to heavy patronage at certain times of day.

During the time period relevant to the instant matter, the Holly Springs Rite Aid also occasionally employed pharmacy interns. (Buser Dep. 25:23-26:1). A pharmacy intern is a pharmacy student in need of clinical hours, who acts under the supervision of licensed pharmacists. (Id.). Pharmacy interns did not work consistent schedules or a predetermined number of hours each week. (Buser Dep. 28:7-14; 29:9-12; Glover Dep. 32:12-18; Strauss Decl. ¶5). Their availability varied based on the intern's need for clinical hours and class schedule. (Buser Dep. 28:7-14; 29:9-12; Glover Dep. 32:12-18).

Regarding the instant matter before the court, in August 2011, when plaintiff returned from extended medical leave after his hip replacement, he again voiced his concerns about his ability to administer immunizations. (Buser Dep. 127:10-18). Plaintiff contended that his tremors made it frightening, and perhaps even unsafe, for him to administer immunizations using a needle. (Id. Ex. 20). Defendant Rite Aid requested plaintiff provide it with medical documentation of his tremors as well as proposed accommodations. (Id.). Plaintiff's treating physician submitted the requested documentation on August 29, 2011. (Id. 264:16-21).

Plaintiff was terminated on September 8, 2011, due to his inability to immunize. (Id. 258:10-11 & Ex. 28). At the time of his termination, plaintiff had requested three accommodations. First, plaintiff requested he be allowed to perform the ministerial tasks associated with immunizations, but be exempt from actually performing the injection. (Id. 125:3-126:1). Specifically, plaintiff requested he be allowed to complete the necessary paperwork and then schedule customers for vaccines on a different day, when the other pharmacist was working. Second, plaintiff requested that he be scheduled to work with pharmacy interns, so that the interns could administer immunizations under his supervision. (Id. 153:3-9). Finally, plaintiff requested defendant Rite Aid allow him to use an automatic injector. (Id. 172:17-174:3). Such injector would allow him to administer immunizations without the danger of an unsteady needle. (Id.). However, he still would be required to administer CPR if necessary, which he was not physically capable of doing. (Id. 131:24-132:10).

Defendant Rite Aid declined all three of plaintiff's requested accommodations. Prior to his termination, plaintiff engaged in several conversations with Lee seeking an alternative method of CPR administration. (Id. 127:3-6). Specifically, plaintiff proposed having another employee on site to administer CPR. (Id.). However, surrogate CPR administration was prohibited by the North Carolina Board of Pharmacy at that time. (Id. 145:1-5). Eventually, the Board changed this rule to allow surrogate administration of CPR. (Id. 145:6-12).

Following his termination, plaintiff applied for STD and LTD benefits from prior to his date of termination until an unspecified period thereafter. (See Claim Denial Letters, DE 82-21, at 3, 33). As pertinent here, defendant Rite Aid offers STD benefits to employees with qualifying conditions. (SCB Brochure, at 1). The program is funded entirely by Rite Aid out of its general assets and is administered by defendant Prudential as claims administrator. (See Kazmaier Decl. ¶4). The terms of the program are set out in two documents, the SCB Brochure given to Rite Aid employees and ASA. Under the terms of both documents, defendant Prudential is responsible for reviewing and determining an applicant's eligibility. In addition, defendant Rite Aid offers LTD benefits through an insured plan, also administered by defendant Prudential, the terms of which are defined in a separate brochure and the ASA.

On or about November 1, 2011, defendant Prudential denied plaintiff's request for benefits. (DE 88-45). Defendant Prudential cited plaintiff's termination as its reason for denying benefits. (Id.). In the letter informing plaintiff of its decision, defendant Prudential notified him of his right to appeal. (Id.). Plaintiff exercised his right to appeal on or about April 27, 2012. Thereafter, he supplemented his appeal on June 12, 2012. Defendant Prudential, as well as an independent neurologist, reviewed all materials associated with plaintiff's file, and the appeal was subsequently denied on July 30, 2012. (DE 88-43). The ASA provided the denial of a claim was ultimately defendant Rite Aid's decision. (ASA, at 12). Accordingly, plaintiff could have appealed the decision to defendant Rite Aid; however, he ultimately declined to do so.


A. Standard of Review

Summary judgment is appropriate where an examination of the pleadings, affidavits, and other discovery materials properly before the court demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is "material" only if it might affect the outcome of the suit and "genuine" only if there is sufficient evidence for a reasonable jury to find for the non-moving party). When faced with cross-motions for summary judgment, the court must ask "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251; see also Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) ("[T]he court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.") (internal citations and quotations omitted).

The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the non-moving party must then "set forth specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250. In making this determination, the court must view the inferences drawn from the underlying facts in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

Nevertheless, "permissible inferences must still be within the range of reasonable probability, ... and it is the duty of the court to withdraw the case from the jury when the necessary inference is so tenuous that it rests merely upon speculation and conjecture." Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 241 (4th Cir. 1982) (quotations omitted). Thus, judgment as a matter of law is warranted where "a reasonable jury could reach only one conclusion based on the evidence, " or when "the verdict in favor of the non-moving party would necessarily be based on speculation and conjecture." Myrick v. Prime Ins. Syndicate, Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast, when "the evidence as a whole is susceptible of more than one reasonable inference, a jury issue is created, " and judgment as a matter of law should be denied. Id. at 489-90.

B. Analysis

1. Failure to ...

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