Plaintiff EQUAL EMPLOYMENT OPPORTUNITY COMMISSION represented by ADELA P. SANTOS, ELIZABETH A. GROSSMAN, ESQ., MARKUS L. PENZEL, ROBERT D. ROSE
DEFENDANT KOHL'S DEPARTMENT STORES INC REPRESENTED BY MELINDA J. CATERINE FISHER & PHILLIPS, LLP, DAVID A. STROCK FISHER & PHILLIPS, LLP
ORDER ON THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
JOHN A. WOODCOCK, JR. CHIEF UNITED STATES DISTRICT JUDGE
In this employment discrimination action, the Equal Employment Opportunity Commission (EEOC) claims that Kohl’s Department Stores, Inc. (Kohl’s) failed to accommodate a former employee’s disability and constructively discharged her. Having carefully considered the much-disputed record, the Court concludes that under Federal Rule of Civil Procedure 56 there are no genuine disputes of material fact that require jury resolution, and grants Kohl’s motion for summary judgment.
I. STATEMENT OF FACTS
A. Procedural History
On August 23, 2011, the EEOC filed a complaint against Kohl’s, alleging that Kohl’s had unlawfully discriminated against Pamela Manning, a former Kohl’s employee, by failing to accommodate her disability and constructively terminating her employment. Compl. (ECF No. 1). On October 21, 2011, Kohl’s answered the Complaint, denying its essential allegations and asserting several affirmative defenses. Def.’s Ans. to Compl. (ECF No. 5) (Ans.). On December 3, 2012, Kohl’s filed a motion for summary judgment with a supporting statement of material facts. Def. Kohl’s Dep’t Stores, Inc.’s Mot. for Summ. J. (ECF No. 71) (Def.’s Mot.); Def.’s Statement of Material Facts (ECF No. 72) (DSMF). On January 22, 2013, the EEOC responded to Kohl’s motion and its statement of material facts, and filed a statement of additional facts. Pl. EEOC’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. (ECF No. 77) (Pl.’s Opp’n); Pl. EEOC’s Local Rule 56.1 Opposing Statement of Material Facts (ECF No. 78) (PRDSMF); Pl. EEOC’s Additional Statement of Material Facts (ECF No. 79) (PSAMF). On February 25, 2013, Kohl’s filed a reply to the EEOC’s response and to the EEOC’s statement of additional material facts. Reply to Pl.’s Opp’n to Def. Kohl’s Dep’t Stores, Inc.’s Mot. for Summ. J. (ECF No. 105) (Def.’s Reply); Def. Kohl’s Dep’t Stores, Inc.’s Reply to EEOC’s Additional Statement of Material Facts (ECF No. 106) (DRPSAMF).
B. Factual Background 
1. The Kohl’s Store in Westbrook, Maine
During the period relevant to this lawsuit, Tricia Carr was the Store Manager for Kohl’s store in Westbrook, Maine (the Westbrook Kohl’s), Michelle Barnes, the Assistant Store Manager for Apparel and Accessories at the Westbrook Kohl’s, Ryan Austin Pease, the Administrative Assistant at the Westbrook Kohl’s, Maureen Gamache, a District Manager for Kohl’s, and Michael Treichler, a Territory Human Resource Manager for Kohl’s. DSMF ¶ 1; PRDSMF ¶ 1. Ms. Carr is familiar with diabetes because her mother and uncle have diabetes and are insulin-dependent. DSMF ¶ 2; PRDSMF ¶ 2. Maureen Gamache is a diabetic; she has Type 2 diabetes and controls her medical condition with diet and exercise.DSMF ¶ 3; PRDSMF ¶ 3. Michael Treichler’s mother has diabetes and is insulin-dependent. DSMF ¶ 4; PRDSMF ¶ 4.
During the relevant period, the Westbrook Kohl’s had four salaried executives: the Store Manager; the Assistant Store Manager of Children’s, Footwear and Home; the Assistant Store Manager of Human Resources/Operations; and the Assistant Store Manager for Apparel and Accessories. DSMF ¶ 5; PRDSMF ¶ 5. The Westbrook Kohl’s had approximately 125 hourly associates. Id. Only thirteen of the 125 hourly associates had the status of “full-time associates”: (A) Area Supervisor Children’s, Footwear & Home; (B) Home Sales Supervisor; (C) Kids Sales Supervisor; (D) Shoes Sales Specialist; (E) Area Supervisor Apparel & Accessories; (F) Misses Sales Supervisor; (G) Men’s Sales Supervisor; (H) Jewelry Sales Specialist; (I) Beauty Sales Specialist; (J) Area Supervisor Customer Service; (K) Area Supervisor Operations; and (L) Visual Supervisor. Id. The Administrative Assistant at the Westbrook Kohl’s also works full-time, although that position is ordinarily a part-time position. Id. Out of these thirteen “full-time associates, ” eleven were considered full-time sales associates; the Visual Supervisor and the Administrative Assistant do not service customers on the sales floor. DSMF ¶ 6; PRDSMF ¶ 6. The number of full-time associates allowed at a Kohl’s store is based on the store’s sales volume, as determined by Kohl’s Office of Store Administration and Store Finance. DSMF ¶ 7; PRDSMF ¶ 7. The majority of sales associates scheduled to work at Kohl’s stores on each shift are part-time sales associates.DSMF ¶ 10; PRDSMF ¶ 10.
Full-time sales associates at Kohl’s are supervisors or lead persons within the store. DSMF ¶ 8; PRDSMF ¶ 8. The job responsibilities of full-time sales associates include ensuring that (A) the fitting rooms are monitored, merchandise is recovered from the fitting room and sales floor and returned to its proper place, (B) there is additional coverage on the cash registers when there are lines of customers, (C) customer questions and returns are handled appropriately, and (D) the communication books—store set-up requirements—are completed in a timely manner. Id. Full-time associates also process returns to vendors—locating the merchandise that is to be returned and processing the returns through a computer—and conduct price changes on merchandise. Id. Some of the full-time sales associates are considered supervisors because they lead and direct the work of part-time sales associates and the flow of work in each department in the store.DSMF ¶ 9; PRDSMF ¶ 9. These associates may coach part-time sales associates on Kohl’s policy and procedures but do not have the authority to hire, discipline, or discharge the part-time sales associates whom they supervise. Id.
All full-time associates are guaranteed between 36 and 40 hours of work per week; part-time associates are not guaranteed a minimum number of hours per week. DSMF ¶ 11; PSAMF ¶ 1. In addition to being guaranteed 36-40 hours per week, full-time associates are entitled to receive benefits which include, without limitation, medical coverage, life insurance, paid sick leave, paid vacation, paid holidays, paid personal days, jury duty pay, bereavement pay, merchandise discounts, and 401(k) plans. DSMF ¶ 12; PRDSMF ¶ 12. Full-time associates are also entitled to more paid vacation and personal days than part-time associates, and full-time sales associates pay less for health insurance benefits than part-time associates. Id. Neither full-time nor part-time associates of Kohl’s are subject to the terms of a collective bargaining agreement. DSMF ¶ 18; PRDSMF ¶ 18.
Kohl’s schedules their full-time and part-time sales associates’ work using a computer program called Assets. DSMF ¶ 21; PRDSMF ¶ 21. Kohl’s corporate office sets the projected workload in Assets, and each store’s administrative assistant enters the availability of each part-time sales associate and any requests for leave or time off. Id. Full-time sales associates are entered into Assets as having “open availability, ” id., which Mr. Treichler defined as the ability to work any time of the day or night as needed by the business. PSAMF ¶ 16; DRPSAMF ¶ 16. Requiring full-time sales associates to have open availability is standard practice in the retail industry. DSMF ¶ 14; PRDSMF ¶ 14. The workload is determined based on, among other things, sales volume projections for a given day, scheduled marketing events, floor or merchandise set-ups or changes, freight deliveries, markdowns or price changes, graphics or visual changes, merchandise recovery from the sales floor, changes to sale signs in the store, and maintenance.Id.
Once this information is entered, Assets automatically places sales associates in work schedules based on the anticipated workload for that week, the availability of each associate, the requests for leaves or time off, and the tasks each sales associate is trained to perform. DSMF ¶ 22; PRDSMF ¶ 22. Assets is also programmed to automatically schedule each full-time sales associate to work two nights a week and every other weekend. DSMF ¶ 24; PRDSMF ¶ 24. The program automatically distributes night and weekend shifts among the available full-time sales associates to ensure that a particular full-time sales associate is not scheduled to work every night shift during the week or during every weekend. Id. From time to time, the workload or other business considerations may necessitate a deviation from this general scheduling rule. Id. Associates typically are not scheduled to work a closing shift at night immediately followed by an opening shift the next morning, and Assets is programmed to require at least nine hours between the times that an associate ends one shift and begins the next shift. DSMF ¶ 25; PRDSMF ¶ 25. In addition, the Administrative Assistant reviews the schedule to make sure that Assets has not made any mistakes. Id.
Assets automatically generates the store-wide work schedule once a week. DSMF ¶ 22; PRDSMF ¶ 22. Assets also notifies the store how many hours of coverage it needs in each department and what time the coverage should begin and end. DSMF ¶ 23; PRDSMF ¶ 23. The hours the Westbrook Kohl’s is open to the public vary based on the day of the week and time of the year, opening as early as 7:00 a.m. and closing as late as 11:00 p.m.; during Christmas season, store hours are extended, opening as early as 6:00 a.m. and closing as late as 12:00 a.m. DSMF ¶ 19; PRDSMF ¶ 19. Although Kohl’s does not have set work shift times, employees often refer to an “opening shift” as one beginning between 6:00 a.m. and 8:00 a.m. and a “mid-day shift” as beginning between 9:00 a.m. and 11:00 a.m., although 12:00 p.m. to 8:00 p.m. and 1:00 p.m. to 9:00 p.m. shifts could also be considered mid-day shifts. PSAMF ¶ 2; DRPSAMF ¶ 2. Ryan Pease, Administrative Assistant at the Westbrook Kohl’s, stated that “[s]omebody who is an early person may define a night as 7:00. Somebody who is a night person may define a night as – you know what I mean – closing a 10:30, 11:30, a 12:30 shift.” PSAMF ¶ 13; DRPSAMF ¶ 13.
Mr. Pease reviewed the store-wide weekly schedule generated by Assets to confirm that: (A) there were no gaps in coverage; (B) all of the full-time associates were scheduled to work at least 36 hours in a week; (C) no associates were scheduled to work more than five days in a given week; and (D) no associates were scheduled to close the store and open the store the following morning. DSMF ¶ 26; PRDSMF ¶ 26. After revising this schedule, Mr. Pease gave the schedule to Ms. Carr for final edits. DSMF ¶ 27; PRDSMF ¶ 27. Ms. Carr reviewed the weekly schedule to make sure that (A) there were no gaps in coverage, (B) full-time associates were scheduled for at least 36 hours per week, and (C) no one was scheduled to work more than five days in one week. Id.
2. Ms. Manning’s Employment History at Kohl’s
Ms. Manning has Type I diabetes and has been a diabetic for the past 37 years. DSMF ¶ 30; PRDSMF ¶ 30. Kohl’s hired Ms. Manning as a part-time Freight Specialist at their Westbrook store in October 2006. DSMF ¶ 33; PRDSMF ¶ 33. In this position, Ms. Manning recovered items from the sales floor and returned them to their proper place. Id. The typical shift for this position was during the early morning hours, and Ms. Manning worked twenty hours a week, beginning at 6:00 a.m. or 6:30 a.m. and ending between noon and 2:00 p.m. Id. While employed as a part-time Freight Specialist, Ms. Manning was able to perform all of the job duties of the position and did she did not request any type of accommodation. DSMF ¶ 34; PRDSMF ¶ 34.
Ms. Manning was later transferred to a position as a part-time sales associate in the Misses, Juniors & Men’s Department. DSMF ¶ 35; PRDSMF ¶ 35. She was able to perform all of the job duties of that position. Id. The only accommodation Ms. Manning requested was a lunch break. Id. On January 1, 2008, Kohl’s promoted Ms. Manning to full-time sales associate as a Beauty Specialist. DSMF ¶ 36; PRDSMF ¶ 36. From this time through the end of Ms. Manning’s employment with Kohl’s, Ms. Barnes—the Assistant Store Manager for Apparel and Accessories—was Ms. Manning’s immediate supervisor. DSMF ¶ 43; PRDSMF ¶ 43. Ms. Barnes reported directly to Ms. Carr, the Store Manager. Id. As Beauty Specialist, Ms. Manning worked between 36 and 40 hours per week, and was often scheduled to work between 9:00 a.m. and 7:00 p.m. DSMF ¶ 37; PRDSMF ¶ 37. She was occasionally scheduled to work at night and she worked every other weekend. Id. Her work schedule was dictated, in large part, by the projected Beauty Department workload. Id.
As a full-time sales associate in the Beauty Specialist position, Ms. Manning was, among other things, responsible for overseeing the Beauty Department, effectively using company tools and sharing that information with others, and interacting with other employees. DSMF ¶ 41; PRDSMF ¶ 41. She was also responsible for assisting with price changes in the Beauty Department. DSMF ¶ 38; PRDSMF ¶ 38. To do price changes, she had to report to work as early as 6:00 a.m. Id. At times, Ms. Manning also worked on the overnight shift to do price changes. Id. Ms. Manning was able to perform all job duties of the position while working as a Beauty Specialist, DSMF ¶ 39; PRDSMF ¶ 39, and did not have any issues with her work schedule during 2008 and 2009. DSMF ¶ 42; PRDSMF ¶ 42.
In January 2010, Kohl’s implemented a nation-wide restructuring of the hours and staffing for the Beauty Department, which resulted in a reduction in the number of hours allocated to the Beauty Department in each of its stores. DSMF ¶ 44; PRDSMF ¶ 44. No jobs were eliminated as a result of the reduction in hours. Id. However, associates who worked in the Beauty Department had to work in other areas of the store in order to maintain their full-time or part-time status. Id. During that month, Ms. Carr and Ms. Barnes met with Ms. Manning to inform her about the Beauty Department restructuring and the resulting reduction in hours in the department. DSMF ¶ 45; PRDSMF ¶ 45. Ms. Carr and Ms. Barnes told Ms. Manning that the full-time sales associate position as a Beauty Specialist was being eliminated, and that there would only be approximately 18 to 20 hours of work in the Beauty Department each week. Id. Ms. Manning was told that if she wanted to remain a full-time sales associate, she would have to work in other areas of the store where coverage was needed. Id. According to Kohl’s witnesses, Ms. Manning was being phased out as a full-time Beauty Specialist and in the process of being transitioned to another position in another Department when one became available that suited her skill set and personality. PSAMF ¶ 15; DRPSAMF ¶ 15. A Kohl’s employee explained that until “another position opened up, ” they had to preserve Ms. Manning’s status as a full-time associate. Id.
Thereafter, Ms. Manning became a full-time sales associate who floated among several departments, including the Beauty Department, the Misses, Juniors & Men’s Department, and the Apparel & Accessories Department. DSMF ¶ 46; PRDSMF ¶ 46. Assets scheduled Ms. Manning to work most of the available hours in the Beauty Department and the remaining hours in other departments, where she was trained to work, based on the workload in each department. DSMF ¶ 48; PRDSMF ¶ 48. Ms. Carr has testified that Ms. Manning was a supervisor both when she was the beauty specialist and when the full-time beauty position was eliminated,  PSAMF ¶ 10; DRPSAMF ¶ 10, and that Ms. Manning had supervisory responsibilities in these other departments. DSMF ¶ 49; PRDSMF ¶ 49. Scheduling was not part of Ms. Manning’s job duties during this time or any other period in which she worked at Kohl’s. DSMF ¶ 29; PRDSMF ¶ 29. She was responsible for supervising part-time associates and the work load on the sales floor, including, without limitation, recovery, cleanup, and price change events. DSMF ¶ 49; PRDSMF ¶ 49. After the Beauty Department was restructured, the sales projections called for more hours in the Beauty Department on nights and weekends and fewer hours during weekdays. DSMF ¶ 48. Ms. Manning also worked customer service, point-of-sales (cashier), fitting rooms, price changes, and whatever else she was scheduled to do. DSMF ¶ 46; PRDSMF ¶ 46. During this time—after the January 2010 meeting—Ms. Manning’s job duties never changed; she was just assigned in other departments of the Westbrook store. DSMF ¶ 47; PRDSMF ¶ 47. Her work hours, however, became more erratic. PRDSMF ¶ 47.
While Ms. Manning worked at Kohl’s, she was never disciplined. DSMF ¶ 73; PRDSMF ¶ 73. Ms. Manning was a good employee who received good performance evaluations as well as pay raises in 2008 and 2009. DSMF ¶¶ 74, 75; PRDSMF ¶¶ 74, 75. While Ms. Manning was a full-time Beauty Specialist, she asked for time off for the death of her friend, the death of her mother, for a broken foot, and for two broken wrists. DSMF ¶ 72; PRDSMF ¶ 72. Full-time associates at Kohl’s are entitled to receive benefits including paid sick leave, paid personal days, and bereavement pay. See DSMF ¶ 12. Ms. Manning was allowed to take all the time off she requested and she returned to work following her leaves. DSMF ¶ 72; PRDSMF ¶ 72. Ms. Manning was allowed to take breaks at work when she needed them. DSMF ¶ 76; PRDSMF ¶ 76.
Ms. Manning received training regarding harassment and discrimination at every place she has worked, including Kohl’s. DSMF ¶ 77; PRDSMF ¶ 77. As a result, Ms. Manning knew how to report something that she found to be discriminatory or harassing. Id. Ms. Manning received a copy of Kohl’s Associate Handbook while she worked at Kohl’s, which contained at least some information on discrimination and harassment, and Ms. Manning was also aware that she could view some Kohl’s policies online. DSMF ¶ 78; PRDSMF ¶ 78. Kohl’s also has workplace postings in the break room regarding harassment and discrimination. DSMF ¶ 79; PRDSMF ¶ 79.
Kohl’s provides annual training regarding the Americans with Disabilities Act (ADA) to associates and managers. DSMF ¶ 81; PRDSMF ¶ 81. Kohl’s has a policy regarding the ADA that is maintained on K-net, the Company’s intranet, and is available to associates. DSMF ¶ 82; PRDSMF ¶ 82. With the exception of Ms. Manning’s claim, Kohl’s has not received a complaint of disability discrimination from an employee in Maine during the past five years. DSMF ¶ 83; PRDSMF ¶ 83.
3. The Events Giving Rise to the Dispute Between Ms. Manning and Kohl’s
In March of 2010, Ms. Manning notified Ms. Barnes that she was having problems working her scheduled hours. DSMF ¶ 50; PRDSMF ¶ 50. Some of the shifts Ms. Manning worked around that time include: a 6:00 a.m. to 2:00 p.m. shift on March 17; a 6:30 p.m. to 10:30 p.m. shift on March 19; and a 10:00 a.m. to 6:30 p.m. shift on March 20. PSAMF ¶ 4; DRPSAMF ¶ 4. Ms. Manning told Ms.Barnes that her difficulties were due to her diabetes and that she needed a steady work schedule, and Ms. Barnes replied that she needed to obtain a doctor’s note to support her request. DSMF ¶ 50; PRDSMF ¶ 50. This was the only conversation that Ms. Manning had with Ms. Barnes where Ms. Manning expressed concerns about her work schedule, before the events discussed in this section. Id.
In response to Ms. Barnes’ request for a doctor’s note, Ms. Manning visited her endocrinologist, Dr. Brodsky, on March 25th. DSMF ¶ 51; PRDSMF ¶ 51. Dr. Brodsky’s notes indicate that Ms. Manning was anxious and stressed and that the stress was causing high glucoses. PSAMF ¶ 5; DRPSAMF ¶ 5. He wrote that she had many stressors including ‘[h]er job and its difficult schedule and that her ‘glucoses are erratic but high overall, esp. past 2 mos.’” Id. (alteration in original).
Dr. Brodsky gave Ms. Manning a letter addressed to Tricia Carr which stated:
I am writing to ask your assistance in accommodating the medical condition of my patient, Pamela Manning. In particular, I am asking that she be allowed to work a predictable day shift (9:00 a.m. to 5:00 p.m. or 10:00 a.m. to 6:00). Ms. Manning has type 1 diabetes. She takes five daily injections of insulin that must be timed to match her meals and activity.
Ms. Manning’s diabetes control has recently deteriorated and exhibits a clear stress pattern. She reports that she is having difficulty matching her insulin action to her work schedule in your store when she swings shifts (e.g. working late shift one day and returning for an early shift the next day). The blood sugar fluctuation caused by the schedule change often induces additional stress and more sugar fluctuation. A more predictable and regular schedule should help smooth her blood sugar and help prevent serious complication of the diabetes.
Thank you for considering this information in your dealings with my patient, Pamela Manning. If I can provide additional information that would ...