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Tarbell v. Rocky's Ace Hardware

United States District Court, D. Massachusetts

March 20, 2018





         The plaintiff, Stephen R. Tarbell (“Tarbell”), has brought this action against his former employer, Rocky's Ace Hardware[1] (“Rocky's”), claiming that Rocky's engaged in various acts of disability discrimination related to Tarbell's heart condition, including Tarbell's wrongful termination from his employment. In his Complaint, Tarbell has asserted claims against Rocky's for “Disability Discrimination” pursuant to Mass. Gen. Laws ch. 151B § 4 (“Chapter 151B”) (Count I) and “Disability Discrimination” in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”) (Count II).[2] Presently before the court is “Defendant's Motion for Summary Judgment” by which Rocky's is seeking summary judgment in its favor on each of the plaintiff's claims. (Docket No. 56). Also before this court is “Defendant's Motion to Strike” by which Rocky's is seeking to strike certain of plaintiff's responses to its Rule 56 statement of undisputed facts and certain statements set forth in plaintiff's memorandum in support of his opposition to summary judgment. (Docket No. 69).

         The undisputed facts establish that Tarbell's claims for disability discrimination fail on the merits. Specifically, the undisputed facts do not show, or tend to show, that Tarbell was capable of performing the essential functions of his job with or without reasonable accommodation. Therefore, the defendant's Motion for Summary Judgment is ALLOWED. For the reasons set forth below, the defendant's Motion to Strike is MOOT.


         Rocky's has filed a motion to strike certain of Tarbell's responses to its Rule 56 state-ment of undisputed facts and certain statements set forth in plaintiff's memorandum in support of his opposition to summary judgment. (See Docket No. 69). In support of its motion, Rocky's points out that Tarbell makes assertions in both documents that are not supported by citations to record evidence, are contrary to record evidence, are argumentative, or are speculative. (See Rocky's Mem. in Supp. of Mot. to Strike (Docket No. 70)). Rocky's also points out that several of plaintiff's “responses” to undisputed facts are in fact entirely non-responsive. (See id.). While there is merit to many of Rocky's contentions, this court will not make individual rulings on the various alleged discrepancies. Instead, it has considered Rocky's statement of facts, Tarbell's response to the statement of facts, the evidentiary record, the briefing on the motion to strike, and counsel's oral argument before the court, in order to determine which facts are supported by record evidence and whether they are, in fact, truly undisputed. The following statement of facts details this court's analysis. As detailed herein, this court has concluded that while the parties disagree as to each other's motives, the material facts are not in dispute. The defendant is entitled to judgment on both of plaintiff's claims as a matter of law.


The following facts are undisputed unless otherwise indicated.

         Tarbell's Employment With Rocky's

         In October 2005, Tarbell began employment with Rocky's as an Assistant Manager in training at Rocky's Walpole, Massachusetts store. (DF ¶ 1). By September or October of 2010, Tarbell was promoted to Store Manager at the Walpole store by District Manager, Joslyn Babich (“Babich”), to whom he reported. (DF ¶ 2). Babich oversaw 10-13 Rocky's stores. (Id.).

         In April 2011, Tarbell was diagnosed with a clogged artery in his heart. (DF ¶ 3). Due to his heart condition, Tarbell needed assistance with heavy lifting. (DF ¶ 4). Babich was aware of Tarbell's heart condition and often asked him how he was doing. (DF ¶ 3). Tarbell told Babich that his staff took care of the heavy lifting for him. (DF ¶ 4).

         Tarbell's Reassignment

         Over the course of Tarbell's employment, Rocky's Managers and Assistant Managers were transferred from store-to-store as needed, which happened “all of the time.” (DF ¶ 5). In 2012, Rocky's made the decision to close its Norwood store. (DF ¶ 6). This decision was not announced until May 21, 2012. (DF ¶ 40). Rocky's anticipated that the Norwood store's business would be picked up by the Walpole store. (DF ¶ 34). In or about May 2012, Babich reorganized the management and staff in her district. (DF ¶ 7). As part of the reorganization, Babich made the decision to move Tarbell to become the Manager of Rocky's store in Randolph, where the previous Store Manager had been terminated because he had difficulty managing his staff and there had been theft issues in the store. (DF ¶ 8). As part of the reorganization, Babich made the decision to reassign Cory King from being the Manager of Rocky's Fall River store to succeed Tarbell as the Manager of Rocky's Walpole store. (DF ¶ 11). Babich chose Mr. King to manage the Walpole store, in part, because even though he had managed a smaller store (DF ¶ 13), Babich believed he “was ready for a larger volume store” and he “had really great relationships with customers and knew how to connect and build relationships with them.” (DF ¶¶ 12-13).[4]

         On approximately May 7, 2012, Babich told Tarbell that he would be transferring to Randolph in part because “the Walpole store was extremely well run”; Tarbell “had been able to run the store shorthanded, [his] assistant managers were very, very well trained and were able to handle the store, whether or not [he] was there”; and because “[he], and only [he], could possibly fix Randolph.” (DF ¶ 16). Tarbell, who was not aware at that time that the Norwood store was closing, responded that he was not interested in being transferred to the Randolph store and that he “did not feel like he was physically going to be able to go in and do all of the work that was required of fixing a store.” (DF ¶ 19). Tarbell told Babich that he was unhappy going to Randolph and asked her if he could “do something else[, ]” including take a demotion. (DF ¶ 25; Tarbell Dep. at 14). Babich replied that there was no other position in the company for him. (DF ¶ 25). Later that same day, Karen Markham, Director of Human Services (“Markham”), called Tarbell and told him that she would work to try to find out if there was “anything that could be done.” (DF ¶ 27). Later that week, on a conference call with Babich and Markham, Tarbell, unhappy that Babich and Markham told him that there was no other option for him, brought up that his health was an issue, and Markham replied[5] that she had nothing in her file that reflected a health issue and, according to Tarbell, told him that if he didn't take the position in Randolph, she would see to it that he wouldn't work anywhere in the company again. (DF ¶¶ 28-29; Tarbell Dep. at 100).

         Tarbell's Medical Note

         On May 14, 2012, Tarbell went to his healthcare provider, Kay A. Thompson, M.D. (“Dr. Thompson”) and told her that “Rocky's wanted to put him in a position that he did not think he could handle.” (DF ¶ 31). Dr. Thompson provided Tarbell with a note that stated “Restrictions: No heavy lifting, or more physically demanding or new position due to heart condition.” (Id.; Def. Ex. 5 (emphasis added)). Tarbell faxed the note to Babich or Markham that day. (DF ¶ 32). On the same or the following day, Babich and Markham called Tarbell and together they discussed Dr. Thompson's May 14, 2012 note. (DF ¶ 33). The parties agree that “[i]f the doctor says that an employee cannot do something, then Rocky's honors what the doctor says.” (Id.).

         Markham had “significant concerns that Walpole may pick up business from Norwood, and that could result in a different or more stressful job.” (DF ¶ 34). Therefore, Markham spoke to Dr. Thompson for clarification of the note, asking “whether if the Walpole store was to be picking up new business from a local store closing, would she consider that a new, different or more stressful job for Tarbell.” (DF ¶ 35). Dr. Thompson said it would. (Id.). The parties agree that based on Dr. Thompson's note and Markham's conversation with Dr. Thompson, Tarbell could not be transferred to a new position in Randolph or remain the Walpole Store Manager. (DF ¶ 36). Markham told Tarbell that based on his doctor's note, he would not be able to return to work until he was in better health, and provided Tarbell with paperwork to apply for job-protected leave pursuant to the Family and Medical Leave Act (“FMLA”). (Id.).[6]On May 21, 2012, Cory King became the Store Manager in Walpole and Rocky's announced the Norwood store closing. (DF ¶¶ 39-40).

         On May 22, 2012, Dr. Thompson completed an FMLA Certification of Health Care Provider form wherein she indicated that Tarbell was “unable to perform any of [his] job functions due to [his] condition” and provided that “the job functions the employee is unable to perform” was “no repetitive heavy lifting.” (DF ¶ 43; Def. Ex. 6). As the May 22, 2012 form failed to mention the “no new position” restriction, which was articulated in the May 14 note, Markham asked Tarbell for clarification. (DF ¶ 44). On June 6, 2012, Tarbell emailed Markham that he was seeing his doctor later that week and that “he would get back to her after that.” (Id.). On June 11, 2012, Dr. Thompson completed a Certification of Health Care Provider form that was identical to the May 22, 2012 form but included an explanatory letter. (DF ¶ 45; Def. Exs. 6, 9). The letter stated “To Whom It May Concern: Stephen Tarbell has significant heart disease and may require cardiac bipass surgery in the near future. Increased stress caused by changing job positions or assignments at this time could be deleterious to his health and I do not recommend it for medical reasons.” (Def. Ex. 9 (emphasis added)). Tarbell took FMLA leave from mid-May through mid-August 2012. He sought and obtained unemployment insurance for the period of his FMLA leave, which Rocky's did not contest. (PR ¶ 55).

         Offers of Alternative Positions

         Tarbell and Markham were not in contact in July 2012, while Tarbell was on leave. (DF ¶ 48). At some point in August, Tarbell told Markham that he was having surgery “next month” but did not tell her when it would take place. (DF ¶ 49). Before August 16, 2012, at the end of Tarbell's FMLA leave, Markham called Tarbell and told him that she had been holding some jobs open for him. (DF ¶ 50). She offered him the position of Assistant Manager at Rocky's store in Canton at the same rate of pay that he had been earning as Store Manager in Walpole. (DF ¶ 50). That position had become available on or about August 6, 2012. (Markham Suppl. Aff. ¶ 4).[7] She also offered Tarbell the position of Paint Advisor in the Canton store, explaining that it would be “at a rate of about $10-$12/hour[.]” (DF ¶ 51; Trombetta Ex. 1). In their communications around this time, Tarbell indicated that he needed reduced hours for up to three months and had some lifting restrictions. (Trombetta Ex. 1).

         On August 21, 2012, Tarbell emailed Markham to say that he would accept the Canton Assistant Manager position. (DF ¶ 59). In his email accepting the position, Tarbell did not identify any restrictions he thought he may have in returning to work. (Id.). Markham then asked Tarbell to get a note clearing him to work in a new position, with or without accommodations, and identifying what, if any, restrictions he had. (DF ¶ 60).

         In response, on or about August 24, 2012, Tarbell provided Markham with a note from Dr. Thompson dated August 24, 2012 that provided “Restrictions: Stephen Tarbell can continue working with the same restrictions I outlined in May.” (Def. Ex. 13).

         From August 24 through August 30, 2012, Markham and Tarbell engaged in a series of emails wherein Markham sought clarification from Tarbell about Dr. Thompson's August 24 letter and about Tarbell's ability to return to work.[8] For example, on August 24, after receiving Dr. Thompson's letter, Markham emailed Tarbell expressing “[Dr. Thompson] [s]ent me paperwork that says the same thing as last time. No. new job…… Please call me asap.” (Def. Ex. 10 at 4). Tarbell responded on August 25, “[t]hanks for acknowledging. I meant to ask.” (Id.). On August 26, Markham emailed Tarbell, “I'm confused are you coming back to work or not. If not I need to fill the positions. Please call me!” (Id.). Later that day, Tarbell responded, “I'm sorry Karen, I thought we were all set. Please let me know what additional information you need. As I've already indicated my physical limitations are unchanged from May 19, and therefore my doctors recommendations are unchanged as well. If you think you're confused, how do you think I feel. Those recommendations have been the same since April 2011. Somehow, between 5/19 and 5/21 they became an issue. I'll try and call you tomorrow afternoon.” (Id. at 3-4). Markham replied,

Let me try to clarify before we talk…. You recently told me that you believed you were capable of performing the assistant manager job in Canton which I had offered to you prior to your FML running out. However, the note your doctor provided me with on Friday still indicates no new assignment. I need that to be cleared up - and she needs to be specific about how much weight you can lift and for how long she expects that restriction to last and confirm that you would be able to work 50 hrs/wk.... I look forward to speaking with you tomorrow; we need to make a decision as I have been holding two key positions open and cannot afford to do that any longer. The paint department/sales in Canton have suffered greatly because of that open position. Likewise, I'm concerned about the effect the open assistants position is having on the store as well.

(Id. at 3). The following day, on August 27, 2012, Tarbell replied “[m]y doctor has given you all the information you should need. Do not expect me to ask her to justify your decisions.” (Id.; DF ¶ 65). Markham replied, “[i]f your position is the doctor has given me everything I need to make a decision, I will remind you that she has said no change in job and if that stands then I ask you how you think I can offer ...

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