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DAVIS v. AMERICAN DRUG STORES

May 15, 2003

MATTIE DAVIS, PLAINTIFF,
v.
AMERICAN DRUG STORES, INC. DEFENDANT.



The opinion of the court was delivered by: Paul E. Plunkett, United States District Judge

MEMORANDUM OPINION AND ORDER

Mattie Davis has sued American Drug Stores, Inc. for its alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12102, et seq. Defendant has filed a Federal Rule of Civil Procedure ("Rule") 56(c) motion for summary judgment and a motion to strike portions of plaintiffs fact statements. For the reasons set forth below, the motion to strike is granted in part and denied in part and the summary judgment motion is granted.

Motion to Strike

Defendant says that plaintiff improperly denied seventeen of the fact statements it asserted in its LR 56.1(a)(3) Statement and that none of (he additional facts she asserts is properly supported. Thus, defendant asks the Court to strike paragraphs 26, 34, 46, 49, 50, 52-56, 60, 65, 69, 73, 85, 86 and 92*fn1 from plaintiff's LR 56.1(b)(3)(A) Statement and her entire LR 56.1(b)(3)(B) Statement.

Plaintiff denied some or all of the facts asserted by defendant in paragraphs 26, 34, 46, 49, 50, 60, 65, 69, 73, 85, 86 and 92 of its fact statement on the grounds that they were not supported by the evidence defendant cited, As to paragraphs 26, 46, 49, 69, 73, 86, 92, and the second sentence of paragraph 65, the Court agrees. Thus, defendant's motion to strike these responses is denied. The evidence cited by defendant does, however, support the facts it asserts in paragraphs 34, 50, 60 and 85. Those denials, therefore, will be stricken and plaintiff will be deemed to have admitted those facts.

Plaintiff denied the facts asserted by defendant in paragraphs 52-56 of its fact statement on the grounds that they are hearsay.*fn2 The facts asserted in paragraphs 52 and 53, that plaintiff has asthma attacks only a few times each year and that she takes medication that generally controls the condition, are based on the testimony of plaintiff's mother, Ms. Lee. Defendant says that those facts are based on Ms. Lee's observations, not on out-of-court statements made to her by her daughter, and thus, are not hearsay. That may be true, but the portion of Ms. Lee's testimony that defendant cites does not say that she has personal knowledge of those facts. Because the evidence cited by defendant does not establish that Ms. Lee is competent to testify to the facts asserted in paragraphs 52 and 53, defendant's motion to strike plaintiff's responses to them is denied.

The Court will, however, strike plaintiff's responses to paragraphs 54-56. The facts asserted in those paragraphs are taken from plaintiff's treating physician's notes. Though they are hearsay, they fall within the exception for statements made for purposes of medical diagnosis or treatment. See FED, R. EVID, 803(4). Plaintiff's denials of the facts in these paragraphs are, therefore, stricken.

Defendant also asks the Court to strike plaintiff's statement of additional facts in its entirety. The Court agrees that the first two paragraphs should be stricken, in those paragraphs, plaintiff attempts to use a 1997 report from the National Institutes of Health as expert testimony about the classifications and symptoms of asthma. Plaintiff has not, however, explained why the report was prepared, the methodology underlying it, whether the guidelines in it are generally followed by the medical community or even whether the six-year old report represents the NIH's current position. Absent such information, the report does not constitute admissible evidence of the classifications and symptoms of asthma. Thus, the first two paragraphs of plaintiff's LR 56.1(b)(3)(B) Statement are stricken.

The Court also strikes: (1) the word "immediately," which is not supported by the evidence cited, from the seventh paragraph; and (2) the statements allegedly made to plaintiff by members of defendant's Human Resources Department, which are inadmissible hearsay, from the ninth paragraph. In all other respects, defendant's motion to strike plaintiff's LR 56.1(b)(3)(B) Statement is denied.

Facts

Plaintiff, who is a lifelong asthma sufferer, started working for defendant on February 9, 1999 as a Clerk III in its Licensing/Treasury Department. (Def's LR 56.1(a)(3) Stmt. ¶¶ 6, 65.) Virginia Lasenby was plaintiff's supervisor. (Id. ¶ 9.)

Plaintiff received a copy of defendant's employee handbook at the time she was hired. (Id. ¶ 13.) The handbook says that employees are required to complete absence reports for each missed day of work. (Id. ¶ 14.) It also says that an employee who is absent for three or more consecutive days must submit a report of attending physician form. (Id. ¶ 18.) Moreover, the handbook states that employees are not eligible for vacation time or unpaid leaves of absence until they have been employed for six months. (Id. ¶ 19.)

Between February 9, 1999 and June 4, 1999, plaintiff was absent from work on four separate occasions. (Id. ¶ 21.) Each time, she submitted the proper form and returned to work when scheduled. (Id.) In her ninety-day performance review, plaintiff was told that her attendance and promptness "need[ed] improvement." (Id., Ex. 5, Lasenby Dep., Ex. 3.)

On the evening of June 4, 1999, plaintiff had an asthma attack and was hospitalized. (Id. ¶ 23.) On June 11, 1999, Lasenby sent plaintiff absence report and attending physician forms and asked her to return them as soon as possible. (Id. ¶ 24.) Plaintiff submitted absence report forms ...


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