Wehner v. Best Buy Co., Inc. et al

Filing 42

MEMORANDUM AND ORDER granting in part and denying in part 34 Motion of defendant for Summary Judgment; denying 35 Cross-Motion of plaintiff for Summary Judgment. Signed by Judge Marvin J. Garbis on 3/10/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSEPH W. WEHNER, JR.

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Plaintiff
vs.

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BEST BUY STORES, L.P.

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Defendant
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CIVIL ACTION NO. MJG-15-2163

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Memorandum and Order Re: Summary Judgment
The Court has before it Defendant’s Motion for Summary
Judgment [ECF No. 34], Plaintiff’s Cross-Motion for Summary
Judgment [ECF No. 35], and the materials submitted relating
thereto.

The Court has held a hearing and had the benefit of

arguments from counsel.
I.

INTRODUCTION
Plaintiff Joseph Wehner (“Wehner”) filed the Complaint [ECF

No. 1] asserting claims against his former employer, Defendant
Best Buy Stores, L.P. (“Best Buy”) and two of its employees.
Wehner presented

his claims in four counts:



Count I - violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. (2012);



Count II - violation of the Maryland Fair Employment
Practices Act (“FEPA”), Md. Code. Ann., State Gov’t
§ 20-601 et seq. (2014 Repl. Vol.)(disability
discrimination);



Count III - violation of FEPA (age discrimination); and



Count IV - violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. (2012).

Wehner dropped his claims against the individual defendants
when he filed the Amended Complaint [ECF No. 20] and has agreed
that Best Buy is entitled to summary judgment on his age
discrimination claims presented in Counts 3 and 4 of the Amended
Complaint.1
By the instant cross-motions, each side seeks summary
judgment.

II.

SUMMARY JUDGEMENT STANDARD
Summary judgment is appropriate where “the pleadings, 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); see also Desper Prods., Inc. v. Qsound
Labs, Inc., 157 F.3d 1325, 1332 (Fed. Cir. 1998).

The Court,

viewing the evidence in favor of the non-moving party, must
determine whether a reasonable fact finder could find for the
non-movant or whether the movant would be entitled to judgment
as a matter of law.

See Anderson v. Liberty Lobby, Inc., 477

1

Wehner states that he “does not oppose Best Buy’s Motion
for Summary Judgment with respect to his age discrimination
claims under the AD[E]A and MFEPA.” Pl.’s Mem. [ECF No. 35-1] at
2 n.2.

2

U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
327 (1986).
Cross motions for summary judgment “do not automatically
empower the court to dispense with the determination whether
questions of material fact exist.”

Lac Courte Oreilles Band of

Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 349 (7th
Cir. 1983).

“Rather, the court must evaluate each party’s

motion on its own merits, taking care in each instance to draw
all reasonable inferences against the party whose motion is
under consideration.”

Mingus Constructors, Inc. v. United

States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).

The Court may

grant summary judgment in favor of one party, deny both motions,
or grant in part and deny in part each of the parties’ motions.
See Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003).

III.

DISCUSSION
A. Factual Background2
On or about August 6, 2008, Best Buy hired Wehner as a

District Business Manager.

Wehner was fifty years old at the

time he began his employment with Best Buy, possessed a high
school degree, and had more than thirty years of retail
managerial experience.

2

The parties disagree as to many material facts.
3

In late 2008, Wehner was appointed interim General Manager
(“GM”) of a Best Buy store in Bel Air, Maryland.

In 2009,

Wehner applied for, and received, the position of GM of a new
Best Buy store in Hunt Valley, Maryland.

Later, Wehner was

promoted3 to be GM at the Best Buy store in Bel Air, which was
larger.
In November of 2012, Wehner contracted a tick-borne illness
and took a leave of absence pursuant to the Family Medical Leave
Act, 29 U.S.C. § 2601 et seq.

Wehner’s leave was extended, with

Best Buy’s approval, until November 9, 2013, at Wehner’s
request.

After Wehner extended his leave, Best Buy found

someone to permanently replace him as GM of the Bel Air store.
During his recovery, Wehner suffered from migraines,
soreness, fatigue, and loss of concentration. [ECF No. 35-13] at
7-8.

Dr. James S. Langan, a Clinical Neuropsychologist,

evaluated Wehner in April 2013 and concluded that, although
Wehner was “slowly recovering from his illess,”
[I]n my view [Wehner’s] current cognitive abilities
would prevent him from being successful in executing
his multiple responsibilities quickly and efficiently.
My concern is that he will develop increasing stressrelated symptoms as he struggles to keep up with work
demands. . . .
For his future, I would recommend that he not return
to his former position.
A position of lesser
3

Wehner did not have to interview or apply for this
position.
4

responsibility may be possible where he is able to
draw upon his accumulated wisdom about the retail
industry . . . . Being a store manager “on the front
lines” is not possible at the present time given his
present cognitive limitations.
Langan Rep. [ECF No. 34-7] at 6.
Wehner updated the new supervising District Manager Johnny
Arias (“Arias”) and District Human Resources Manager Cheryl
Holland (“Holland”) on his medical condition, symptoms, and
recovery progress.

[ECF No. 35-13] at 7-8.

Wehner also worked

with Best Buy Human Resources caseworkers and The Hartford to
determine his leave and anticipated return date.

Id.

On September 25, 2013, Wehner called Holland and left her a
voicemail about returning to work.

Holland did not return

Wehner’s call.
On September 30, 2013, Wehner saw his primary care
physician, Dr. John Mulvey.4

According to Dr. Mulvey’s notes

from that visit,
[Wehner has] been able to concentrate better . . .
[and] is finally getting confidence back. He does not
feel that he can return to [the GM] position of long
hours . . . corporate duties in which he has a 40 hour
week and a more manageable schedule to avoid multiple
distracting demands . . . is something he could do.
Mulvey Notes [ECF No. 35-10].

4

It is disputed whether Wehner was cleared to return to work
by Dr. Mulvey. See Def.’s Mem. [ECF No. 34-1] at 2 n.3.
5

On or about October 4, Holland emailed Wehner’s caseworker
from the Best Buy HR Support Center.

Holland wrote, “I have

recently tried to reach out to Joseph Wehner.

He didn’t

respond. He is expected to return to work in the first week of
November. What are the next steps to secure his return or
facilitate his termination?”

[ECF No. 35-12] at 2.

The

caseworker replied that he had told Arias that Wehner was
approved for leave until November.

Holland responded, “I just

want you to reach out to Joe [Wehner] to start the process of
returning him to work or terminating his employment if
possible.” Id.
Wehner called Holland on October 7, 2013, to discuss
returning to work, but did not talk to her. On October 16, 2013,
Wehner sent an email to Holland and Arias to “touch base with
each of [them] in regards to returning to work with Best Buy.”
[ECF No. 35-13].

Holland replied to this email on October 17

and explained she was out of town for work and asked to meet
with Wehner the following week.

Id.

Arias stated that he and

Holland originally thought that Wehner would return to a vacant
GM position or a similar position.

See Arias Dep. [ECF No. 34-

4] at 203:19-204:13.
On October 21, 2013, Wehner scheduled a phone call with
Holland and Arias for October 22, 2013, in lieu of a meeting.
Before the call, Wehner faxed Holland an excerpt of Dr. Langan’s
6

medical report from April 2013 — the only medical documentation
that Holland had seen so far.
Also prior to the phone call with Wehner, Holland spoke
with Arias, a Best Buy attorney, the regional manager, and the
Territory Human Resources Director, Courtney Capeling, to
discuss potential positions to offer Wehner. Holland Dep. [ECF
No. 34-5] at 81-86.
During the October 22 phone call, Wehner said he could not
return to work as a GM.

Holland and Arias offered Wehner an

Assistant Manager position, a mobile supervisor position and,
possibly, a General Manager In Training5 (“GMIT”) position.
Wehner rejected these offers because, he says, he believed that
he would be medically unable to perform these jobs because they
were similar to the GM position he once held.

Wehner Dep. [ECF

No. 34-2] at 86:16-19, 89:2-10, 98:8-22.

5

There is conflicting testimony regarding whether Best Buy
offered Wehner a GMIT Position. Wehner testified that he
discussed the GMIT position with Holland and Arias and that he
was interested in it, but the position was never offered and Mr.
Arias said it no longer existed. See Wehner Aff. [ECF No. 39-1]
¶ 2. Conversely, Holland testified that the GMIT position was in
fact offered to Wehner, but Wehner rejected it. See Holland Dep.
[ECF No. 34-5] at 84-85. Courtney Capeling said that Best Buy
was willing to create the position for Wehner but she was
unaware of whether it was actually offered. See Capeling Dep.
[ECF No. 34-6] at 18:9-19:3. Arias did not mention in his
deposition that the GMIT position was offered. See Arias Dep.
[ECF No. 34-4] at 207:11-22.
7

During the October 22 phone call, Wehner stated he was
interested in three positions he had seen on the Best Buy
website: a Delivery Distribution Center Supervisor (“DDC”)
position, a District Services Manager (“DSM”) position in
District 95, and a Deputy Field Marshal6 (“DFM”) position.
Wehner submitted a formal application only to the DDC position.
Ultimately, Best Buy did not offer Wehner any of these
positions.
Holland did not offer the DSM position to Wehner because it
was in a different district and “not under [her] supervision,”
and she and Arias “weren’t the people who would decide who got
those jobs.”

Holland Dep. [ECF No. 34-5] at 88:21, 91:14-17.

Wehner was told that he had to apply online, which he did not
do.
The DDC position was located in District 25, but Holland
was not in charge of hiring for that position.

Holland called

the HR manager involved and learned that Wehner could not be
considered for the DDC position because he did not possess the
required Associate’s degree.
Holland contacted the DFM position supervisor to inquire
into the availability of the position because no openings were
listed on the website.

The DFM supervisor told her there were

6

A Deputy Field Marshal position is commonly known as the
Best Buy “Geek Squad.”
8

no DFM positions available.

On October 24, 2013, Holland sent

Arias an email informing him that no DFM positions were
available and that for the DDC position “a two year degree is
REQUIRED and a four year degree is preferred!!!!”

[ECF No. 35-

14].
Holland took no further action to locate other vacant
positions in the Mid-Atlantic region.

Altogether, Holland had

about three to four verbal conversations with Wehner during the
relevant time period. Holland Dep. [ECF No. 34-5] at 155:18156:1.

Holland and Arias called Wehner on November 1, 2013, to

inform him that they could not find him an alternative position,
and Wehner was notified by email several days later that he
would soon be terminated.

Best Buy terminated Wehner on

November 13, 2013.
B. Disability Discrimination Claims (Counts I - II)
Wehner asserts “failure to accommodate” claims under the
ADA and FEPA.
The ADA prohibits employers from “discriminat[ing] against
a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or
discharge of employees, . . . .” 42 U.S.C. § 12112(a)(2012).

9

FEPA prohibits essentially the same conduct.7

Unlawful

discrimination includes “not making reasonable accommodations to
the known physical or mental limitations of an otherwise
qualified individual with a disability . . . unless such covered
entity can demonstrate that the accommodation would impose an
undue hardship on the operation of the business of such covered
entity.”

42 U.S.C. § 12112(b)(5)(A)(2012).

The instant case proceeds pursuant to a burden of proof
shifting procedure whereby:


Plaintiff must present a prima facie case that
there was a failure to make a reasonable
accommodation.



If he does, the burden shifts to the Defendant
to prove that a reasonable accommodation would
have caused undue hardship.

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d
454, 464 (4th Cir. 2012).

1. Prima Facie Case of Discrimination
To establish a prima facie case that there was a failure to
make a reasonable accommodation, a plaintiff must prove:

7

“An employer may not: (1) fail or refuse to hire,
discharge, or otherwise discriminate against any individual with
respect to the individual’s compensation, terms, conditions, or
privileges of employment because of: (i) the individual’s . . .
disability unrelated in nature and extent so as to reasonably
preclude the performance of the employment.” Md. Code Ann.,
State Gov’t § 20-606(a) (2014 Repl. Vol.).
10

(1) that he was an individual who had a disability
within the meaning of the statute;
(2) that the [employer] had notice of his disability;
(3) that with reasonable accommodation8 he could
perform the essential functions of the position; and
(4) that the [employer] refused to make such
accommodations.
Wilson v. Dollar Gen. Corp., 717 F.3d 337, 344 (4th Cir. 2013);
see also Peninsula Reg’l Med. Ctr. v. Adkins, 137 A.3d 211, 213
(Md. 2016) (listing same elements under FEPA).
It does not appear that Best Buy disputes the first two
elements, i.e., that Wehner had a disability and that Best Buy
was on notice of his need for an accommodation.9

However, the

latter two elements are at issue.

2. Was there a Reasonable Accommodation?
Under the ADA, a “reasonable accommodation” may include
“job restructuring, part-time or modified work schedules,
reassignment to a vacant position, . . . [or] appropriate
adjustment or modifications of . . . policies.”
§ 12111.

42 U.S.C.

The FEPA’s definition of “reasonable accommodation” is

8

“[A]t the summary judgment stage, the employee ‘need only
show that an “accommodation” seems reasonable on its face,’ and
then the employer ‘must show special (typically case-specific)
circumstances that demonstrate undue hardship.’” Reyazuddin v.
Montgomery Cty., Maryland, 789 F.3d 407, 414 (4th Cir. 2015)
(quoting U. S. Airways v. Barnett, 535 U.S. 391, 401–02 (2002)).
9
See [ECF No. 34-1] at 2; [ECF No. 35-1] at 5-6.
11

almost identical, and includes “[r]eanalyzing . . . job
specifications, qualifications, or criteria to determine if they
may be waived or modified.”

Md. Code Regs. 14.03.02.05(B).

The ADA scheme imposes upon employees and employers a goodfaith duty “to engage [with their employees] in an interactive
process to identify a reasonable accommodation” once an employee
communicates his disability and a desire for accommodation.
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581
(4th Cir. 2015)(citing Wilson, 717 F.3d at 346); Smith v.
Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 1172
(10th Cir. 1999) (“[B]oth parties have an obligation to proceed
in a reasonably interactive manner to determine whether the
employee would be qualified, with or without reasonable
accommodations, for another job within the company and, if so,
to identify an appropriate reassignment opportunity if any is
reasonably available.”).
Wehner contends that a reasonable accommodation in this
case would have been reassignment to the DDC, DSM, or other
(unspecified) potentially vacant positions.

Best Buy denies

that Wehner could perform the essential functions of these
positions.

Best Buy contends that it fulfilled its obligation

to make a reasonable accommodation by offering Wehner at least
three other positions with duties that he could have performed.

12

a. The Offered Positions10
Wehner bears the burden of proving that Best Buy’s job
offers were not reasonable accommodations.
at 235.

See Adkins, 137 A.3d

An employer is “not obligated to provide the

accommodation requested or preferred by the employee; the
reassignment need only be a ‘reasonable accommodation.”

Cravens

v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1019
(8th Cir. 2000)(citing 42 U.S.C. §§ 12111(9), 12112(b)(5)(A)).
When Wehner told Holland and Arias that he could not be
successful in a GM position, Holland and Arias accepted his
explanation and offered Wehner alternative positions: an
Assistant Manager position, an in-store mobile supervisor
position, and, possibly, a GMIT position.11

Wehner turned down

the positions offered to him.
Best Buy argues that Wehner’s rejection of these offers
constituted a failure on his part to engage in the interactive
process and to accept a reasonable accommodation.

See 29 C.F.R.

§ 1630.9(d)(2011)(“An individual with a disability is not

10

Assistant Manager, Mobile Supervisor, and GMIT Positions
The parties dispute whether the GMIT position was ever
offered and whether Wehner would have accepted it, making this a
jury issue. Compare [ECF No. 39] at ¶ 2(stating Wehner was
never offered the position of GMIT), with Wehner Dep. [ECF No.
34-2] at 100:19-22 (stating he discussed the GMIT position with
Holland and Arias); Holland Dep. [ECF No. 34-5] at 84-85
(stating that she formally offered the GMIT position to Wehner).
11

13

required to accept an accommodation . . . . However, if such
individual rejects a reasonable accommodation . . . the
individual will not be considered qualified.”).

If, in fact,

the positions offered to Wehner were reasonable accommodations,
then Best Buy fulfilled its legal obligation and Wehner has
failed to prove a prima facie case.
To avoid summary judgment, Wehner must show that these
offered positions were not reasonable accommodations in that he
could not perform them even with an accommodation and/or that
they were ineffective, meaning they did not address his
disability-related difficulties.

See Fleetwood v. Harford Sys.

Inc., 380 F.Supp.2d 688, 699 (D. Md. 2005)(“[T]he accommodation
must be effective (i.e., it must address the job-related
difficulties presented by the employee’s disability).”).
As noted, there is an issue as to whether Best Buy in fact
offered Wehner a GMIT position.

And, there are factual issues

regarding whether Wehner could perform the essential functions
of the positions that were offered.
Wehner stated in his deposition that, in October 2013, he
did not feel capable of performing the essential functions of
the Assistant Manager or Mobile Supervisor positions, and it
“wasn’t advised by [his] doctor.” Wehner Dep. [ECF No. 34-2] at
89:12.

Wehner stated that

14

those positions are extremely active and engaging. A
considerable
amount
of
multitasking,
and
making
decisions in the moment that have impacts to the
business. And during the Christmas season when we’re
extremely busy, when I was returning to work during
that period it was considered to be too much of a
challenge to be able to multitask and be productive in
that capacity, or any of those capacities, due to the
nature of the engagement with customers and employees
and the day-to-day business operations in the store.
Id. at 98:14-99:1.

According to Wehner, the DDC and DFM

positions he wanted did not involve those multitasking aspects
to the same “degree,” so he felt he could perform the DDC and
DFM positions.

Id. at 99:6

Wehner offers Dr. Langan’s April

2013 report as evidence of why he could not return as GM, an
assistant manager, or mobile supervisor.

The report stated:

For his future, I would recommend that he not return
to his former position.
A position of lesser
responsibility may be possible . . . . Being a store
manager “on the front lines” is not possible at the
present time given his present cognitive limitations.
Langan Rep. [ECF No. 34-7] at 6.
However, when Wehner visited Dr. Mulvey on September 30, he
was showing improvement.

Mulvey Notes [ECF No. 34-3] at 5 (“He

has been able to concentrate better; reading newspaper; starting
to multitask and is finally getting confidence back.”).

Wehner

acknowledged that he had improved “significantly” from April to
October 2013, his migraines had gone away by November 9, 2013,
and he expected to continue improving.
34-2] at 54-55:7, 99:17-22.

See Wehner Dep. [ECF No.

But, as he reported to Dr. Mulvey

15

in September, “he d[id] not feel he c[ould] return to General
Manager position of long hours, and constant issues and
distractions coming at him from multiple directions.”

Mulvey

Notes [ECF No. 34-3] at 5.
Based on this evidence, Best Buy characterizes Wehner’s
limitations as self-imposed rather than based on direct medical
instructions12 and contends that “[t]he three in-store positions
(i.e., the Assistant Manager, in-store supervisor, and GMIT
positions) that Best Buy offered involved less pressure and
responsibility, and thus were suitable positions to which Mr.
Wehner could have returned in accordance with Dr. Langan’s
recommendation.” Def.’s Reply [ECF No. 36] at 15.
Best Buy offers Wehner’s deposition testimony as proof that
he was capable of performing those positions:
Q Okay. But you still regarded yourself incapable
of performing to a level that the general manager,
assistant manager or supervisor in-store positions
were appropriate?
A
I
wouldn’t
challenging, and it
productive.
Wehner Dep. at 100:1-6.

say
incapable.
I
would
say
would be an opportunity to be

According to Arias, Wehner rejected the

supervisor position because it was “too low for him, as he
stated.” Arias Dep. [ECF No. 34-4] at 55.
12

The dispute over this

“The only evidence is that Mr. Wehner questioned his
ability to perform at a successful level.” Def.’s Mem. [ECF No
34-1] at 11.
16

issue is complicated by the fact that Wehner’s particular
limitations were not clearly defined or explained.
Wehner’s testimony is contradictory, and it is not clear
that he was incapable of performing the essential duties of the
offered positions with some other kind of accommodation, such as
a modified schedule until he was fully recovered.

Best Buy

could have done more to consider modifying the offered positions
and to understand Wehner’s limitations, but the record also
shows that Wehner effectively ended discussion of those
positions.

See Arias Dep. [ECF No. 34-4] at 208:3-8 (“I want to

give him the exact same job he had. And if he didn’t want that,
I offered a position lower. . . . And it didn’t feel like he was
interested in - - in any of them.”).
Both parties are responsible for carrying out the
interactive process/individualized assessment, and neither can
take advantage of the other’s failure to interact while
simultaneously also failing to engage in the process.

Cf.

E.E.O.C. v. Kohl’s Dep. Stores, Inc., 774 F.3d 127, 132 (1st
Cir. 2014)(“If an employer engages in the interactive process
with the employee in good faith, for the purpose of discussing
alternative reasonable accommodations, but the employee fails to
cooperate in the process, then the employer cannot be held
liable under the ADA for failure to provide reasonable
accommodations.”)
17

The Court finds that, on the current record, there are
genuine issues of material fact regarding Best Buy’s offering
Wehner a reasonable accommodation.
entitled to summary judgment.

Thus, neither side is

See Reyazuddin, 789 F.3d at 416.

b. Interactive Process and Individualized
Assessment
According to the EEOC, employers should take the following
steps in an interactive process:
(1) Analyze the particular job involved and determine
its purpose and essential functions;
(2) Consult with the individual with a disability to
ascertain the precise job-related limitations
imposed by the individual’s disability and how
those limitations could be overcome with a
reasonable accommodation;
(3) In consultation with the [employee], identify
potential
accommodations
and
assess
the
effectiveness each would have in enabling the
individual to perform the essential functions of
the position; and
(4) Consider the preference of the [employee] and
select and implement the accommodation that is
most appropriate for both the employee and
employer.
Bryant v. Better Business Bureau, 923 F. Supp. 720, 737 (D. Md.
1996)(citing 29 C.F.R. § 1630.9).

Although failing to engage in

an interactive process is not a per se violation of the ADA, it
is evidence that the employer may be acting in bad faith and may
preclude awarding summary judgment in favor of the employer.

18

See Cravens, 214 F.3d at 1021 (finding a genuine dispute of fact
as to whether employer engaged in the interactive process in
good faith); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296,
318 (3d Cir. 1999)(“[W]here there is a genuine dispute about
whether the employer acted in good faith, summary judgment [for
the employer] will typically be precluded.”); Hendricks–Robinson
v. Excel Corp., 154 F.3d 685, 700 (7th Cir. 1998)(denying
summary judgment to an employer because it may not have pursued
the interactive process in good faith).
Similarly, Maryland law requires employers to make an
individualized assessment of an employee’s “ability to perform
the essential functions of a job.”
14.03.02.04(B)(3).

Md. Code Regs.

The “individualized assessment” requirement

“provides stronger protection for the employee than the federal
‘interactive process’ regulation because [section
14.03.02.04(B)] explicitly provides that failure to conduct an
individualized assessment constitutes an unlawful employment
practice.”

Adkins v. Peninsula Regional Med. Center, 119 A.3d

146, 164 (Md. App. 2015).
There are genuine issues of material fact regarding whether
Best Buy engaged in the requisite interactive process and

19

individualized assessment.13

Even if Best Buy did fail to do so,

Wehner would have to identify an appropriate14 vacant position
into which he could have been transferred.

See Jacobs v. N.C.

Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir.
2015)(“[A]n employer will not be liable for failure to engage in
the interactive process if the employee ultimately fails to
demonstrate the existence of a reasonable accommodation that
would allow her to perform the essential functions of the
position.”); Adkins, 137 A.3d at 226 (“[I]n a failure-totransfer case [under the Rehabilitation Act], if, after a full
opportunity for discovery, the summary judgment record is
insufficient to establish the existence of an appropriate
position into which the plaintiff could have been transferred,
summary judgment must be granted in favor of the defendant-even
if it also appears that the defendant failed to engage in good
faith in the interactive process.” (quoting Donahue v. Consol.
Rail Corp., 224 F.3d 226, 233-34 (3d Cir. 2000))).

c. Qualified Individual
i. DDC Position
13

In addition, Best Buy contends that Wehner did not
adequately enter into an interactive process.
14
Meaning a job for which he was a “qualified individual” in
the sense it was an available job that “he desire[d] and c[ould]
perform with or without reasonable accommodation.” Smith, 180
F.3d at 1161.
20

Wehner applied online for the DDC position and told Holland
and Arias.

Holland and Arias did not have hiring authority for

this position, but Holland contacted Barbara Hoffman, the Human
Resources manager responsible for hiring for that position, and
told her that Wehner had applied.

Hoffman informed Holland that

the DDC job criteria specified that an Associate’s Degree was
required and a Bachelor’s Degree was preferred, and that she
would not be “pursuing” Wehner because he did not have the
appropriate degree.15

Holland Dep. [ECF No. 34-5] at 98:13-15.

Holland did not consider waiving the educational requirement for
Wehner.

Wehner was not considered for this position because he

did not possess a college degree.
Wehner claims that Best Buy’s failure to consider whether a
waiver of the degree requirement was reasonable in his case is a
violation of Best Buy’s duty to engage in an individualized
assessment and interactive process.

However, Wehner must

demonstrate that he was a qualified individual who could
otherwise perform the essential functions of the DDC job.

“The

term ‘qualified,’ with respect to an individual with a
15

The advertised “Basic Qualifications” for the DDC position
were an “Associate Degree, must be at least 18 years of age, and
one year of supervisory/management experience.” DDC Supervisor
Job Description [ECF No. 34-8] at 2. The “Preferred
Qualifications” were a “Bachelor’s Degree, 2 years Logistics
Warehouse, Inventory and/or Distribution experience, 2 years
Customer Service experience, [and] 2 years
supervisory/management experience.” Id.
21

disability, means that the individual satisfies the requisite
skill, experience, education and other job-related requirements
of the employment position such individual holds or desires and,
with or without reasonable accommodation, can perform the
essential functions of such position.” 29 C.F.R. § 1630.2(m)
(emphasis added).
The EEOC Interpretive Guidance on the ADA envisions a twostep process when determining whether an individual is
“qualified,” with the first step being an assessment of whether
the individual satisfies the job’s prerequisites, including
education requirements.16

See 29 C.F.R. Pt. 1630, App.

circuits follow this two-step approach.

Other

See, e.g., Peters v.

City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002); Skerski v.
Time Warner Cable Co., a Div. of Time Warner Entm’t Co., L.P.,
257 F.3d 273, 278 (3d Cir. 2001); Browning v. Liberty Mut. Ins.
Co., 178 F.3d 1043, 1047 (8th Cir. 1999).

Under this approach,

Wehner has failed to show he satisfied the DDC position’s degree
prerequisites at step one.
16

The second step inquires into whether the employee can
perform the other essential duties of the job. Id. In this
case, Wehner offers his own opinion that he could perform the
DDC position duties based on their similarities to his job as a
GM. See Pl.’s Reply [ECF No. 39] at 9 n.7; Wehner Aff. [ECF No.
39-1] at ¶¶ 2-6. While a plaintiff’s subjective opinion that is
not based on first-hand experience may not be sufficient in the
face of contrary evidence, see Adkins, 137 A.3d at 231-32, Best
Buy has failed to offer any evidence to dispute Wehner’s
contentions that he can perform the job’s duties.
22

Furthermore, Wehner has failed to show that waiving a
degree requirement is an accommodation that is “reasonable in
the run of cases.”

Barnett, 535 U.S. at 403.

A non-

discriminatory, neutral education requirement is the type of
“barrier” that courts have been reluctant to say must be waived
when accommodating an individual with a disability.

See

Williams v. United Ins. Co. of Am., 253 F.3d 280, 282 (7th Cir.
2001)(holding employer not required to accommodate employee by
“waiving his normal requirements for the job in question”);
Jablonski v. Charles Levy Circulating Co., 919 F.Supp. 298, 300
(N.D. Ill. 1996)(rejecting plaintiff’s argument that the job’s
high school degree requirement should not apply to her because
she had the experience and education to perform the job).
When a plaintiff fails to show why a requirement or policy
is not “reasonable,” a plaintiff may still prevail under the
Barnett framework by “showing that special circumstances warrant
a finding that the accommodation is reasonable under the
particular circumstances of the case.”

United States EEOC v.

St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir. 2016)
(quoting Shapiro v. Twp. of Lakewood, 292 F.3d 356, 361 (3d Cir.
2002)).
Wehner contends that his years of managerial experience
replace the generic requirement of having an Associate’s degree,
especially when no particular major is required for the DDC job.
23

Wehner believes that, as an internal candidate, he did not
necessarily have to meet all of the job requirements because he
had “experience and time and tenure with the company.” Wehner
Dep. [ECF No. 34-2] at 72:17-22.

But, when asked, Wehner could

not identify any other individuals or examples of a time when a
job requirement was waived for an internal candidate.17 Id.
According to Arias, the degree requirements for Best Buy jobs
are strictly applied and there are never exceptions. Arias Dep.
[ECF No. 34-4] at 130:10-132:22.

Holland stated that a degree

requirement was an “essential function” of a Best Buy job.
Capeling Dep. [ECF No. 34-6] at 57:10-22.
However a reasonable jury could find that, in the context
of the instant case, there was not essentiality to a degree.
The record reveals that there is one person (out of
approximately twenty) currently in the DDC position who may not
have an Associate’s Degree (records show she had “some
college”), but Best Buy has testified that individual may have
held the position before the degree requirement was put in
place. Def.’s Resp. to Interrog. [ECF No. 34-9] at 11-12.

Other

courts have held that inconsistently applied nondiscriminatory
policies could preclude summary judgment or constitute special
17

In support, Wehner states he was selected over candidates
with college degrees for the Business Manager position, but that
position did not require a college degree, nor did the GM
position. A college degree was only “preferred.”
24

circumstances in cases like these.

See, e.g., Randle v. City of

Aurora, 69 F.3d 441, 453–54 (10th Cir. 1995)(denying summary
judgment on failure to promote claim because of genuine issue of
fact over the Associate’s Degree requirement because employer
hired someone without degree into the position and permitted
experience to substitute for degree); United States v. Woody,
No. 3:16-CV-127, 2016 WL 6897787, at *10 (E.D. Va. Nov. 22,
2016)(pending on appeal)(noting that “dispute over the
consistency in application of a non-discriminatory hiring policy
could conceivably” lead to denial of summary judgment).
Additionally, the regulations interpreting FEPA differ from
the ADA, suggesting a different obligation for Best Buy.

The

Maryland regulation states that a reasonable accommodation
includes
[r]eanalyzing, with full consideration to the needs of
the applicant or employee with a disability, job
specifications,
qualifications,
or
criteria
to
determine if they may be waived or modified.
Md. Code Regs. 14.03.02.05B(12)(emphasis added).

This

interpretation of FEPA seems to require a case-by-case
consideration of whether a particular job criteria can be
waived, which Best Buy did not do here.

Nor has Best Buy

alleged that the Associate’s Degree requirement was a “bona fide
occupational qualification (BFOQ) reasonably necessary to the
normal operation” of its business.

25

Md. Code Regs. 14.03.02.04.

For the foregoing reasons, genuine issues of material fact
exist regarding whether to make a reasonable accommodation, Best
Buy would have been required to waive the Associate’s Degree
requirement, and whether Best Buy’s failure to consider waiving
the requirement violated its duty to conduct an individualized
assessment.
ii. District Services Manager
There was also, at the pertinent time, an open DSM position
in District 95.18

Holland did not have authority to hire for

that job, so Wehner had to apply for it himself in order to be
considered.

Holland Dep. [ECF No. 34-5] at 88-89:4-7.

Best Buy

argues that Wehner ended its obligation to accommodate him
because he did not apply.
Wehner testified that he chose not to “inquire further” or
apply for the District Services Manager position after talking
with Arias because “it was obvious the position wouldn’t be
available to me.”

Wehner Dep. [ECF No. 34-2] at 158:3-4.

According to Wehner, the phone calls with Arias and Holland were

18

Wehner meets the basic requirements of the District
Services Manager position: a High School Diploma, two years of
profit and loss management, including budget responsibilities,
and three years of retail management experience, and he
testifies that the DSM job duties are sufficiently similar to
his GM job duties and that he can perform them.18 See [ECF No.
34-10] at 6 (listing DSM job requirements and duties); Wehner
Dep. [ECF No. 34-2] at 155:9-10, 157:3-21.
26

“uncomfortable,” “short, and “awkward.” Id. at 158:7-8.

Wehner

stated,
[W]e absolutely didn’t explore any opportunities or
have deeper discussions. The call lasted less than 20
minutes. I kind of went through my health conditions.
[Arias] was very candid about going through positions
in the store. And only wanted the answers whether I
could do the job or not do the job in the store.
Anything beyond that, it was [Holland] that engaged
and said she would look into it.
Id. at 158:13-20.

Nevertheless, Wehner contends that as part of

its individualized assessment duties, Best Buy should have
considered him for the reassignment, or Holland should have
contacted the supervisor in District 95 who shares the same
office space.

Wehner has put forth adequate evidence on his

ability to perform the essential functions of the DSM position
to survive summary judgment.19
Both the Maryland Court of Appeals and federal courts have
held that it is not always necessary for an employee with a
disability to submit a formal application to a specific position
as long as the employer has adequate notice that the employee
desires an accommodation.

Cf. Adkins, 119 A.3d at 146 (An

individualized assessment would include “considering the vacant
positions to which [an employee] applied or, alternatively,
another position available during the relevant time period in

19

As stated by Best Buy counsel at the hearing, Wehner
probably would have got the DSM job had he applied.
27

which [the employer] could have transferred [the employee].”);
Gile v. United Airlines, Inc., 213 F.3d 365, 374 (7th Cir. 2000)
(employer could not refuse to reassign an employee to a day
shift just because she did not fulfill the “technical
requirement” of casting a bid for a day shift while she was on
medical leave).
Best Buy argues that an employer is not required to
reassign an employee to fill a vacancy over a more qualified
applicant, but that is not the situation presented here.
Buy did not consider Wehner for the DSM position.

Best

There are

questions of fact as to whether it would have been unreasonable
or an undue hardship for Holland to have reached beyond her
district to facilitate reassigning Wehner20 or to consider him
without his formal application, when Holland and Arias were
already on notice that Wehner wanted the DSM position.
Moreover, Wehner states he was not required in the past to fill
out an application or interview for the Bel Air GM position. See
Wehner Dep. [ECF No. 34-2] at 28:18-29:1.
The Court concludes that there are genuine issues of
material fact regarding the District Services Manager position.
A reasonable jury could find that Wehner failed to fulfill his
role in the interactive process by not applying for the
20

Especially since Holland had already reached out to other
supervisors about the DDC and DFM positions.
28

position, since he obviously knew how to do so.

However, a

reasonable jury could alternatively find that Wehner’s failure
was due to the alleged bad faith on the part of Best Buy.

iii. Unspecified Vacancies
Last, Wehner contends that Holland and Arias should have
attempted to accommodate him by reassigning him to other,
unspecified, vacant Best Buy positions in the region.21

For

example, Wehner points out that Best Buy has warehouses in
Elkridge, Maryland, and Philadelphia, which employ approximately
fifty people each.
120:17.

Holland Dep. [ECF No. 34-5] at 117:17,

Best Buy also has “project team” positions in Maryland,

and other DFM positions in southern Pennsylvania and New Jersey
that Wehner surmises may have been available.22

Holland did not

consider whether any of these positions were vacant or whether
Wehner would be suitable for these positions because they were
outside of her district and supervision. Id. at 123:21-124:4.
It is the EEOC’s position that an employer’s obligation to
offer reassignment is not limited to vacancies within an
21

Wehner told Holland he was open to working in Pennsylvania,
Delaware, Maryland, and the metro-D.C. area.
22
Although Holland inquired about DFM jobs with Rick
Anderson, who supervised several districts in Maryland,
Delaware, northern Virginia, and Washington, DC, she did not
inquire with any DFM supervisors in southern Pennsylvania or
southern New Jersey, nor did she ask Mr. Anderson to contact
those supervisors to inquire whether any open positions existed.
29

employee’s department, facility, personnel system, or
geographical area, even if it is the employer’s policy
prohibiting such transfers.

See EEOC, Enforcement Guidance:

Reasonable Accommodation And Undue Hardship Under The Americans
With Disabilities Act, 2002 WL 31994335, at *22 (Oct. 17, 2002).
An employer may have a defense that such transfers would cause
undue hardship. Id.
Courts have recognized that the employer is in a far better
position than the employee to identify vacant positions23 that
the employee may qualify for because of the employer’s advanced
capacity and resources.

See, e.g., Taylor, 184 F.3d at 316

(explaining that the employee does not have the burden of
identifying open positions without the employer’s assistance);
Smith, 180 F.3d at 1173 (“[I]n larger companies or companies
where the employee does not have ready access to information
regarding available jobs, it might be reasonable to require the
employer to identify jobs.”).
Nevertheless, Wehner bears the burden of now showing that
such a job was available at the relevant time and that he could
have performed the essential functions of that job.
23

“The term ‘vacant position’ not only includes positions
that are presently vacant, but also those that the employer
reasonably anticipates ‘will become vacant in a short period of
time.’” Cravens, 214 F.3d at 1019 n.5 (quoting Monette v.
Electronic Data Sys. Corp., 90 F.3d 1173, 1187 (6th Cir. 1996)).

30

Crucially, “if, after an opportunity for discovery,
the employee still has not identified a position into
which she could have transferred, the court must grant
summary judgment in favor of the defendant.” Shapiro
v. Twp. of Lakewood, 292 F.3d 356, 360 (3d Cir. 2002);
Kotwica v. Rose Packing Co., Inc., 637 F.3d 744, 750
(7th Cir. 2011) (“plaintiffs, when alleging that an
employer’s failure to reassign them violated the ADA’s
anti-discrimination provisions, bear the burden of
showing that there is a vacant position in existence
for which they are qualified.”); McBride v. BIC
Consumer Prods. Mfg. Co., Inc., 583 F.3d 92, 97–98 (2d
Cir. 2009) (plaintiff “must demonstrate the existence,
at or around the time when accommodation was sought,
of an existing vacant position to which she could have
been reassigned.”); Taylor v. Pepsi–Cola Co., 196 F.3d
1106, 1111 (10th Cir. 1999) (“To survive summary
judgment, Plaintiff must establish that he was
qualified to perform an appropriate vacant job which
he must specifically identify and show was available
within the company at or about the time he requested
reassignment.”).
Reyazuddin v. Montgomery Cty., Md., 7 F.Supp.3d 526, 550–51 (D.
Md. 2014), aff’d in part, rev’d in part and remanded sub nom.
Reyazuddin v. Montgomery Cty., Maryland, 789 F.3d 407 (4th Cir.
2015).

Wehner has not specifically identified any other vacant

positions available to him, so as a matter of law, he cannot
show a prima facie case of failure to accommodate under the ADA
on this specific ground.
It is arguable that a plaintiff may be able to pursue a
claim under the Maryland FEPA for failure to conduct an
individualized assessment (a separate unlawful employment
practice), despite not showing the existence of a vacancy.
Adkins, 137 A.3d at 225 n.16 (“[Employer’s] encouraging

31

See

[plaintiff] to apply for other positions via its website,
however, does not satisfy its responsibility to conduct an
individualized assessment to formulate an effective
accommodation.”).

However, unlike in Adkins where the employer

advised an employee to apply to vacant positions but failed to
help the employee identify any vacancies, here, Best Buy’s
employees did more than simply refer Wehner to the career
website.

For example, Wehner had already identified vacant

positions, and Holland investigated the DDC and DFM positions on
Wehner’s behalf.

Therefore, Best Buy’s failure to locate

additional openings in the company does not, by itself,
demonstrate that it violated FEPA as a matter of law, as a
rational jury could find that Best Buy conducted an
individualized assessment through its other actions.
Nevertheless, evidence that Best Buy did not attempt to identify
other open positions for Wehner could be relevant at trial on
the overall question of whether Best Buy conducted an
individualized assessment under FEPA.24

24

But this evidence cannot be used to show that Best Buy
failed to reasonably accommodate Wehner.
32

IV.

CONCLUSION
For the foregoing reasons:
1. Defendant Best Buy’s Motion for Summary Judgment [ECF No.
34] is GRANTED IN PART AND DENIED IN PART.
a. All claims in Counts 1 and 2 of the Amended Complaint
remain pending.
b. All claims in Counts 3 and 4 of the Amended Complaint
are dismissed.
2. Plaintiff Joseph Wehner’s Cross-Motion for Summary
Judgment [ECF No. 35] is DENIED.
3. Plaintiff shall arrange a telephone conference to be held
by March 24, 2017, regarding the scheduling of further
proceedings and trial.
SO ORDERED, this Friday, March 10, 2017.

_______/s/_________
Marvin J. Garbis
United States District Judge

33