Full opinion text
MEMORANDUM DAVIS, District Judge. Plaintiff, Gary Rose, brought this one-count action for compensatory and punitive damages against his former employer, Home Depot U.S.A., Inc., pursuant to the American with Disabilities Act, 42 U.S.C. § 12101 et seq., in the Circuit Court for Anne Arundel County, from which the case was timely removed by defendant to this court in accordance with 28 U.S.C. § 1441. Rose alleges that defendant violated the ADA by failing to accommodate a disability, namely, vasomotor rhinitis. Discovery has been completed and now pending, inter alia, is defendant’s motion for summary judgment. The issues have been fully briefed, and no hearing is necessary. For the reasons set for below, I shall grant defendant’s motion for summary judgment. I. Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material for purposes of summary judgment, if when applied to the substantive law, it affects the outcome of the litigation. Id. at 248, 106 S.Ct. 2505. Summary judgment is also appropriate when a party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49,106 S.Ct. 2505. “When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavit or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 252, 106 S.Ct. 2505; Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991). Of course, the facts, as well as justifiable inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indust. Co v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court, however, has an affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). II. An understanding of the proper legal outcome in this case requires the recitation of the detailed factual background out of which this case arises. Of course, the evidence must be viewed (and is recounted herein) in the light most favorable to Rose. Rose’s Early Employment with Home Depot Rose was hired by Home Depot in January 1995 to work at the Special Services Desk. He was trained at the Home Depot in Oxon Hill, Maryland. Dep. of Gary Rose, October 9, 2001 at 45 (hereinafter Rose Dep.). Sometime within his first year at Home Depot, Rose transferred to the Millwork Department, which handles special ordering and installation of such products as windows, doors, siding, and shingles. Id. at 45-46. At that time, the Assistant Store Manager for the Millwork and Lumber Departments was Mark Edwards. Edwards Decl. ¶ 2. About a year after starting in the Millwork Department (early 1997), Rose became the Department Supervisor. Rose Dep. at 46. Sometime around May 1998, Rose contacted Edwards, who had transferred to the Glen Burnie, Maryland, store in February 1997. Rose Dep. at 39-40; Edwards Decl. ¶¶ 2, 5. Rose asked Edwards to help Rose arrange a transfer from the Oxon Hill store to the Glen Burnie store. Rose Dep. at 39-40. Rose knew that such a transfer would result in his removal from a supervisory position, but Rose decided that he did not wish to remain as a Supervisor because it was too stressful. Id. at 47-48. Edwards contacted the Store Manager of the Glen Burnie store, who in turn spoke with the Store Manager at Oxon Hill, and Rose was permitted to transfer. Id. at 39-40, 51-52; Edwards Decl. ¶¶ 5-7. Ordinarily, when an employee desires to transfer, he must contact either his current store manager or the Human Resources Manager. Edwards Decl. ¶ 6. An employee who wishes to transfer requires the approval of both his current Store Manager and the Store Manager at the new store. Once an employee asks for a transfer, the decision regarding whether a transfer is possible, and the initiation of the transfer process, are functions shared by the Store Managers of the two stores involved. The Store Manager at the employee’s current store and the Store Manager at the transfer store communicate with each other to determine if the transfer is possible. Whether a transfer is possible is largely dependent on whether the Store Manager of the transfer store has work available for the employee seeking transfer. If both Store Managers agree to the transfer, the current Store Manager completes a form approving the transfer. The form is then sent to the transfer store. Id. Rose was aware that he did not follow the ordinary method of arranging a transfer in respect to his 1998 transfer from Oxon Hill to Glen Burnie. Rose Dep. at 51-52. Rose worked at the Glen Burnie store from June 1, 1998, until July 26, 1999, when he began an extended leave of absence, as discussed infra. He alternated between the Lumber Department and the Millwork Department, two sister departments that were both overseen by Edwards. Id. at 56. Rose’s Ailments Rose had begun to suffer from headaches and sinus infections in 1994. Rose Aff. ¶ 7. His physician, Dr. David Boetcher, referred Rose to a neurologist, Dr. Jerold Mikszewski. In September 1994, Rose told Dr. Mikszewski that he had suffered severe headaches two or three times per year that had been relieved with sleep and aspirin, but on this occasion his headache had lasted two weeks. Def.’s Ex. 6, at 1 (Medical Records of Dr. Jerold Mikszew-ski). Dr. Mikszewski tentatively diagnosed sinusitis, and a CT Scan indicated possible chronic sinusitis. Id. at 1-2. Rose was treated with several antibiotics, an antidepressant, Zoloft, and Tylenol. Id. at 1. Rose had several follow-up appointments with Dr. Mikszewski. Dr. Mikszew-ski’s notes, dated October 3, 1994, indicate that Rose stated that his headaches came and went. Also, it appeared to Dr. Miksz-ewski that as Rose’s stress increased so did his headaches. Id. at 3. During another visit (possibly October 18, 1994), Rose reported that he had had no headaches since his last visit, and the doctor noted that, since Rose started to take the medication prescribed to him, he had not had a headache. Id. at 4. During his visit on December 19, 1994, Rose related to Dr. Mikszewski that he had had a couple of minor headaches and one major headache since his last visit. Id. at 5. Dr. Mikszew-ski described these headaches as migraine headaches. Id. Rose did not continue to see Dr. Mikszewski because the doctor gave him a medication that needed to be injected, and Rose felt that he could not inject himself. Rose Dep. at 16-17; Baker Dep. at 37. Between January 1995 and July 1999, Rose saw his family physician for his headaches and sinus problems. Rose Dep. at 17-18. Rose testified that it was not until 1996 that he began to suffer from headaches similar to the ones from which he presently suffers. Id. at 16. On May 22, 1996, Rose was diagnosed with bronchitis and sinusitis, and was given antibiotics and samples of Claritin D. Def.’s Ex. 5, at 7 (Medical Notes of Dr. David Boetcher, Dr. Katherine David, and Dr. Steven Schwartz). In September 1996, Rose suffered again from sinusitis and was given Claritin D and Vancenase (a cortisone nasal spray). Id. at 8. The record does not show that Rose suffered from sinus problems in 1997. Throughout 1998, Rose suffered from osteoarthritis and gastrointestinal problems that led to gallbladder surgery. Id. at 10-16. In April 1998, Rose was referred to Dr. David Borenstein, complaining of pain in his knees and elbows that had gone on for two years. Def.’s Ex. 8. According to the medical history taken by Dr. Borenstein, Rose reported having a history of occasional migraine headaches. Id. at 2. Rose testified that his family physician began treating him for sinusitis in 1996. Rose Dep. at 17. He would suffer from congestion and headaches and would take over-the-counter sinus medications until he became infected and had to see his doctor to receive antibiotics. Id. at 18. According to Rose, in his perception, this would happen about 10 or 12 times a year. Id. at 19. Rose further stated that from 1996 through 1999, the sinus infections became increasingly worse. Id. at 20. He fought the sinus infections with both over-the-counter medications and then antibiotics. Id. at 21. The antibiotics would clear up the congestion, but the headaches would continue on a periodic basis (once or twice a month), for which he would use Tylenol, but mostly Advil (up to 12 tablets a day when the headache was at its fullest). Id. at 21-22. According to Rose’s wife, Shirley Baker, it would take seven to ten days for the antibiotics to take effect. Baker Dep. at 85. Despite these circumstances, Rose rarely missed work; he would be absent at most a few days. Id. at 44^8; Rose Dep. at 129. The record does not demonstrate that Rose sought any consultations with his family physician for sinusitis or headaches between September 1996 and January 1999. Def.’s Ex. 5, at 7-17. On January 20, 1999, Rose visited the office of his family physician and consulted with Dr. Schwartz, who had joined Dr. Boetcher’s practice in 1997. Id. at 17. Rose related to Dr. Schwartz that he had been suffering from sinus pressure and a headache behind the eyes for a few days. Schwartz Dep. at 14. Dr. Schwartz diagnosed him with sinusitis based, in part, on Rose’s sinus pressure and Dr. Schwartz’s recollection of Rose’s suffering from chronic sinusitis. Id. at 15. Dr. Schwartz prescribed an antibiotic, a cortisone-type nasal spray, and a decongestant nasal spray. Id. at 15-16. Rose testified that he used the medicine that Dr. Schwartz prescribed as the prescription indicated. Schwartz Dep. at 68-70. Rose did not receive any medical treatment for sinus problems or headaches between January 1999 and July 1999. Def.’s Ex. 5, at 17-18. The Exacerbation of Rose’s Symptoms in July 1999 Twice each year, in January and July, in preparation for Home Depot’s semi-annual inventory, one employee from each department is asked to work an overnight shift. Edwards Decl. ¶ 12. This assignment is temporary and usually lasts about four weeks. Employees are typically scheduled from 11 p.m. until 5 or 6 a.m. Rose Dep. at 58. Rose voluntarily undertook this assignment while he worked for Mark Edwards in Oxon Hill. Ediuards Decl. ¶ 12; Baker Dep. at 53. Rose’s first night of inventory preparation in the Glen Burnie store was in January 1999. Def.’s Ex. 36. According to his time sheets, he worked from 8:00 p.m. until 5:00 a.m. from January 11, 1999, through January 28, 1999. Id. As noted supra, Rose visited his doctor complaining of sinus problems during this time period on January 20,1999. Rose participated in the second 1999 inventory at the Glen Burnie store beginning on Monday, July 5, 1999, from about 7:00 or 8:00/8:30 p.m. until 5:00/5:30 a.m. Id. The job required Rose to work in a warehouse atop a 16-foot ladder checking merchandise. Rose Dep. at 58. There was a lot of dust and dirt on the merchandise and in the rafters, and these substances would inevitably end up on Rose in the course of the shift. Id. Further, there was little or no fresh air; Rose described the warehouse as “[hjotter than blazes,” in part, because he had to work close to the lights, atop a ladder, with a good number of other employees. Id. at 61. Rose complained about the poor air quality and circulation in the store overnight and was told that nothing could be done. Id. at 58-61. During the July 1999 inventory, Rose suffered from very bad headaches and sinus problems. Id. at 62. According to his wife, Baker, Rose was having excruciating headaches. Baker Dep. at 55. She tried to get Rose to see Dr. Boetcher and she made an appointment with an allergist. Id. at 54-56. The headaches had “been going on for about a week, maybe a week and a half’ before Rose saw the allergist. Rose Dep. at 68. Rose worked a full overnight shift on Monday, July 12, 1999, but he did not work the rest of the week. Def.’s Ex. 36. The following week he worked four days, from Tuesday, July 20 until Friday, July 23, from about 5:00 a.m. until 2:00 p.m. Id. Rose testified that sometime between the time he met with the allergist on July 21 and the time he saw Dr. Schwartz on July 30, he told his department supervisors that he needed to resume working the day shift: Q: Tell me whatever you can recall about those conversations? A: I was, you know, because of the problems and the dust and the humidity in here at night I’m not able to do overnight inventory even though I had done it for four years straight twice a year, that they needed to put me back into days or find somebody else to do it. Id. at 89-90. He also told Edwards that he could not handle the heat, dust, and fumes. Id. at 90. According to Rose, the managers’ response was that they would look into it. Id. at 91. At that point, Rose still had three weeks remaining on the inventory shift. Id. Rose’s last day at work was Friday, July 23,1999. Def.’s Ex. 36. On Monday, July 19, 1999, Rose had a scheduled appointment with Dr. Schwartz. Def.’s Ex. 5, at 18. Dr. Schwartz was running late, however, and so Rose left the office around 3:30 p.m. with the intention to return “shortly.” Id. Rose returned at 4:31 p.m. but Dr. Schwartz had not yet arrived. Id. The staff informed Rose that he would have to reschedule his appointment, but when he was unable to get the first appointment for the following day, Rose declined to make an appointment, stating that he would go elsewhere. Id. Rose’s wife called Dr. Schwartz’s office the next day, July 20, 1999, and demanded that Rose be put on antibiotics for his sinus problems. Id. It appears from the medical chart that the prescriptions were called in to Rose’s pharmacy on or about July 23,1999. As Rose was unable to get an appointment with Dr. Schwartz, his wife made an appointment for Rose with Dr. Jyothi Gad-de, Baker Dep. at 56, who is board certified in Internal Medicine and Allergy Immunology. Def.’s Ex. 12; Gadde Dep. at 7. At his Wednesday, July 21, 1999, visit, Rose told Dr. Gadde that he had recurring sinus infections for five years, and that it was primarily a spring problem with no symptoms in the fall. Id. at 10-14. Rose did not indicate that he had problems other than during the spring and when they occurred they only lasted for a few weeks. Id. at 18. Rose further related to Dr. Gadde that his current symptoms had lasted approximately four weeks and that his symptoms included headaches, nasal congestion, some nasal discharge, some chest congestion, and some coughing. Id. at 14-15. Rose denied having any chest symptoms, including shortness of breadth, chest tightness, and wheezing. Id. at 16; Def.’s Ex. 13, at 1. Dr. Gadde also took a social history (labeled environmental history in Rose’s medical records). Gadde Dep. at 17; Def.’s Ex. 13. According to Dr. Gadde, Rose did not mention his working conditions at Home Depot or that these conditions had been bothering him. Gadde Dep. at 17-18; Def.’s Ex. 13. Also, he did not indicate any sleeping difficulties. Gad-de Dep. at 18; Def.’s Ex. 13. Dr. Gadde conducted a breathing test to rule out asthma. Gadde Dep. at 19. The result of the test was normal, particularly as Rose is a smoker. Id. at 19-20. Dr. Gadde conducted standard allergy skin testing and concluded that Rose was not having allergic reactions. Id. at 22; 25-28. Dr. Gadde concluded that Rose’s immediate symptoms indicated a sinus infection requiring antibiotics. Id. at 23, 40; Def.’s Ex. 13, at 2. She described his symptoms as mild to moderate. Gadde Dep. at 40. She further noted that upper respiratory infection or non-allergie rhinitis due to non-specific irritants was probably precipitating his symptoms. Def.’s Ex. 13 at 2. She prescribed antibiotics, told Rose to stop smoking and instructed him to return for a second visit in four weeks. Id.; Rose Dep. at 71-72. She also provided Rose a one-page description of vasomotor rhinitis (a form of nonallergic rhinitis). Rose Dep. at 65, 71-72; Def.’s Ex. 14 (Vasomotor Rhinitis Informational Sheet). It is unclear whether Rose filled the prescriptions given to him by Dr. Gadde. Baker Dep. at 62; Def.’s Ex. 37 (Prescription Pharmacy Log). It is undisputed that Rose did not return to see Dr. Gadde as she had instructed him. Gadde Dep. at 62. On July 23, 1999, Rose filled the prescription for antibiotics prescribed by Dr. Boetcher. Baker Dep. at 62. On July 28, 1999, Rose states that he called the computer room at the Glen Burnie store regarding a medical leave of absence. Def.’s Ex. 15, at 1 (Rose’s Call Log). Later that same day, Rose also called the phone center at the store to report that he would be out of work until Friday, July 30, 1999. Id. On Friday, July 30, 1999, Rose went to see Dr. Schwartz. Defs Ex. 5, at 19. Rose told Dr. Schwartz that he had seen Dr. Gadde and reported that he did not have allergies. Id. Rose stated that Dr. Gadde had diagnosed him with “vasomotor rhinitis,” but he did not report to Dr. Schwartz Dr. Gadde’s treatment plan. Id. Rose also reported that he had been suffering from headaches for six weeks but that his sinuses were improving. Schwartz Dep. at 23. According to Rose, his headaches were worse when he went outside but got better when he went to the mountains at his family home in Maysville, West Virginia. Id. His headaches were severe, and he was unable to sleep, work, and concentrate. Id. at 24. Dr. Schwartz diagnosed Rose with chronic sinusitis, sinus headache, and disabling headache and prescribed a decongestant Id. According to Rose, he stated to Dr. Schwartz: ... I couldn’t stand this any longer, I said I’m not able to function like this and our conversation went from there and I asked about getting some time off so I could go to the mountains and see if I can get this stuff to clear up. So, he gave me a 30 day supply of nose spray, some antibiotics and a disability chit [ (disability certificate) ] for work. Rose Dep. at 77. As the problem had continued throughout the summer, Dr. Schwartz suggested that Rose stop working until the heat broke (approximately four weeks), go to the mountains, and see an ear, noise, and throat (“ENT”) specialist. Schwartz Dep. at 24. According to Dr. Schwartz, Rose refused the referral for a consultation with an ENT as he had previously seen an ENT and found that the visit was not helpful. Id. Rose testified that he had seen an ENT in the late 70’s or early 80’s for nosebleeds. Rose Dep. at 123; Baker Dep. at 58-59. On deposition, Dr. Schwartz remarked that the diagnosis of vasomotor rhinitis “fit,” and the fact that Rose reported relief of his symptoms when changing altitude, humidity level, and/or barometric pressure supports a diagnosis of vasomotor rhinitis. Schwartz Dep. at 31. In any event, Rose apparently relocated to West Virginia at around the time he visited Dr. Schwartz. Vasomotor Rhinitis Rhinitis refers to the inflammation of the membranes lining the nose. Gadde Dep. at 34. It is characterized by nasal congestion, rhinorrhea, sneezing, itching of the nose and/or postnasal drainage. Dikewicz and Fineman, Executive Summary of Joint Task Force Practice Parameters on Diagnosis and Management of Rhinitis, at 1 (Ex. 31) (1998) (hereinafter Executive Summary); Gadde Dep. at 34. According to Dr. Gadde, 15% to 20% of adults are affected by rhinitis. Id. The most common form of rhinitis is allergic rhinitis. Id. at 35; Executive Summary at 2. There are several forms of nonallergic rhinitis. Many viruses, such as the common cold virus, can cause rhinitis; this is referred to as infectious rhinitis. Gadde Dep. at 36; Executive Summary at 2. Some women develop rhinitis during pregnancy. Executive Summa'i’y at 7. Some people develop symptoms when they eat particular foods, while others may develop the condition due to the use of cocaine, overuse of nasal decongestants, or airborne substances in the workplace. Id. at 2-3. When it can be determined that a person suffers symptoms only when exposed to certain substances in the workplace, such as grain, wood dusts, and chemicals, then the diagnosis is occupational rhinitis, which may be either allergic or nonallergic. Id. at 3. Vasomotor rhinitis is typically a catchall diagnosis when allergic and other types of rhinitis are ruled out. Gadde Dep. at 40. According to Dr. Gadde, she ordinarily informs her patients that her initial diagnosis is preliminary and that further evaluation is required to rule out other types of rhinitis — something she was unable to accomplish with Rose. Gadde Dep. at 36-39; 42-43. With Rose, the following occurred: A: Well, I think, first of all, with one office visit of mine that I had seen him, it is only a part of the differential diagnosis that this is vasomotor rhinitis, and that was my preliminary assessment of this patient in one office visit. And when people have a possibility of that, then I provide some information [ (referring to the pamphlet on vasomotor rhinitis that Dr. Gadde gave to Rose) ] so they can read about it, either if they ask for it or even without asking for it. Q: And would it be a customary part of your discussion of the treatment plan and diagnosis to explain that this was preliminary and that further evaluation was needed after the sinus infection was under control? A: That’s correct. Q: Although you have no recollection of actually discussing that with Mr. Rose, that would have been a-— it’s part of your usual and customary practice? A: That’s a standard practice. And by just providing some of the information does not necessarily mean at one visit that I have made this as a diagnosis. Id. at 42-43. It is sometimes possible to identify the irritants that tend to trigger rhinitis symptoms in a person who has vasomotor rhinitis. According to Dr. Gadde, those with vasomotor rhinitis tend to respond to a wide range of factors. Id. at 41. Such factors include exposure to cold air, changes in temperature, changes in barometric pressure, and stress. Def. ’s Ex. 14. Dr. Gadde further asserts that the most important factor is whether the patient smokes, as smoking “is the primary precipitant of this condition and primary ag-gravator of this condition.” Gadde Dep. at 41. Accordingly, Dr. Gadde “strongly recommended” that Rose refrain from smoking as it was the “most important” thing he could have done to help to relieve his symptoms. Id. Nasal steroid medications, antihistamines, and decongestants are used to control the symptoms of vasomotor rhinitis. Gadde Dep. at 36; Def. ’s Ex. 14. According to Dr. Gadde, these treatments are usually successful. Gadde Dep. at 44-46. If these treatments fail to provide relief, there are additional medical options, including cortisone pills and surgery. Id. at 59-54; Def.’s Ex. 14; Schwartz Dep. at 31-33. According to Dr. Gadde, if proper treatment regimes are followed, this condition will rarely interfere with a patient’s lifestyle. Gadde Dep. 45, 56-57. Severe headaches are not a common symptom of this illness, except when a patient’s sinus congestion turns into a sinus infection. Gadde Dep. at 64-65, 69-72. Rose’s Unsuccessful Efforts to Obtain a Transfer after July 1999 The gravamen of Rose’s claim in this case is that Home Depot intentionally discriminated against him in violation of the ADA by refusing to accommodate his alleged disability from vasomotor rhinitis. According to Rose, the reasonable accommodation he desired was a transfer to a Home Depot store in Winchester, Virginia, not far from his family home in Maysville, West Virginia. As the following factual account demonstrates, however, Home Depot can hardly be deemed to have intentionally refused to transfer Rose. To the contrary, even viewed in the light most favorable to Rose, the undisputed summary judgment record reflects an unfortunate series of miscommunications and misunderstandings, coupled with regrettable bureaucratic inattention to detail on the part of several Home Depot managers, as compounded by Rose’s failure to approach the company and follow up those approaches (and in particular, in respect to his longtime advocate in the company, Mark Edwards) with clarity and coherence as to his wishes. Rose’s eonclusory contention that a reasonable fact finder could reasonably conclude from the following series of events that Home Depot acted intentionally to deprive Rose of rights assured to him under the ADA is the product of an extraordinary stretch of logic and common sense. On August 9, 1999, Mark Edwards called to find out why Rose had not been at work for two weeks. Def. ’s Ex. 15, at 1. According to Rose’s call log, no one at Home Depot had received the leave of absence documentation that had been faxed on July 30, 1999. Id. Rose told Edwards that he spoke to “Christy” in the computer room on July 28, 1999, about his absence. Id. He then assured Edwards that his wife would fax the appropriate documentation the next day. Id. Rose testified that he and Edwards did not discuss the possibility of a store transfer at that time. Rose states that, during August, he was not thinking of a transfer, but rather, simply of taking the month to recover. Rose Dep. at 77-78, 87-90. Rose remained in West Virginia until shortly before an August 27, 1999, appointment with Dr. Schwartz. Id. at 79. According to Rose the following discussion took place: I went in and talked to Dr. Schwartz. We went over it and he asked me how I was doing, how I was feeling. I told him I was doing fine. We discussed what we should do since the higher altitude seemed to be what I needed and at that time he recommended that I should move to a more mountainous climate, Colorado or the mountains of New Mexico, something like that. And I explained to him that’s not an option, to drop my life, yank my wife out of her work and move. And from there he said, well, he could give me another 30 days. He would write a letter to Home Depot, to Lori Bennett requesting a transfer to the Winchester store since it’s at a higher altitude and I wouldn’t be confined to being in the City 24 hours a day. And that was about it. Id. at 79-80. According to Dr. Schwartz, he gave Rose a 30-day leave of absence on the assumption that Rose was going to attempt to arrange to be transferred. Schwartz Dep. at 42-43. Dr. Schwartz felt that the sinusitis had turned infectious, prescribed an antibiotic, and switched nasal sprays. Id. at 43. Dr. Schwartz gave Rose a doctor’s note stating that Rose was totally incapacitated until September 30, 1999 for “disability headaches” and indicated that a full dictated letter was to follow. Def.’s Ex. 17 (Disability Certificate). Thereafter, in a letter dated September 1, 1999, addressed to Store Manager Lori Bennett, Dr. Schwartz stated that Rose had developed severe and disabling rhinitis and sinusitis symptoms; his problems were purely environmental due to the poor air quality in the local atmosphere; he had incapacitating headaches and so was unable to work; the solution was that Rose move to a more mountainous climate; and that Rose required a six week leave of absence to arrange a transfer. Def.’s Ex. 18. Rose faxed the doctor’s note to the Glen Burnie store on September 1, 1999. Def.’s Ex. 15, at 2. Before this, on August 31, 1999, according to Rose’s call log, Rose called Home Depot and spoke to Assistant Manager Ted Neale and informed him of his situation. Rose told Neale that he was faxing the doctor’s note and he asked Nea-le to forward the information to Mark Edwards and Lori Bennett. Id. That same day, Rose contacted Bennett and informed her that for medical reasons he needed to be transferred to the Winchester, Virginia, store, which is located near Maysville, West Virginia. He told Bennett that Dr. Schwartz would be sending a letter. Id. Bennett asked how long Rose would be unable to work. Id. When Rose told her he could return the first week of October, Bennett allegedly said that she could not ask the Store Manager at the Winchester store to hold open a position for four weeks, and that Rose should call her back two weeks before he was ready to return to work. At that time she would begin the transfer process. Id.; Rose Dep. at 95-96. Rose did not call Bennett on September 15, 1999, two weeks before the expiration of the second 30-day leave of absence. Rose did call on October 4, 1999. Def.’s Ex. 15, at 2. He spoke to Ted Neale and related to him that Bennett had told him to call regarding the transfer two weeks prior to returning to work; Neale said that he would give Bennett the message. Id. Meanwhile, Store Manager Bennett had been promoted, effective September 27, 1999, and she had been replaced by Assistant Store Manager Jay Faison. Bennett Decl. ¶ 5; Faison Decl. ¶ 4. Faison had started working at the Glen Burnie store on or about July 26, 1999; he had never met Rose. Faison Decl. ¶ 4-5. At the time that she was promoted, Bennett had not seen Dr. Schwartz’s September 1 letter and she does not recall having told Rose to contact her about a transfer. Bennett Decl. ¶ 14. Normally, the procedure regarding a transfer would be Bennett’s contacting a Human Resource Manager for assistance with the situation as Home Depot’s policies require. Id. ¶ 19. Assuming the conversation did take place as Rose reports, she did not discuss Rose’s transfer request with Faison because, based upon her last conversation with Rose, he was to contact her again. Id. ¶ 14. Faison states that he was unaware of any transfer issue until February 2000. It came to his attention that Rose had been on a leave of absence since July 1999, but had never completed the formal paperwork for a medical leave, and the “doctor’s notes did not explain his absence for any period after early-October 1999.” Faison Decl. ¶ 8. Around the same time, Faison received a call from the store manager of the Winchester Virginia store, who reported that Rose had appeared at the Winchester store to begin work, asserting that he had been transferred to that store. Id. ¶ 7. However, neither of the store managers had approved the transfer. Id. According to Rose’s call log, Rose called the Glen Burnie store on October 4, 1999, and spoke to Assistant Manager Ted Nea-le about how Rose was supposed to get in touch with Lori Bennett about his transfer. Def's Ex. 15, at 2. Neale promised to give the message to Bennet. Id. Thereafter, on October 18, 1999, Rose called the phone center and left a message for Bennett’s assistant, and he also called and spoke with Ted Neale, who informed Rose that he would speak to the store manager and that someone would call Rose. Id. at 3. According to Vanessa Wimer, Department Supervisor for Special Services from February 1999 through April 2000 at the Glen Burnie store (she was also acting as an administrative assistant to all of the managers), one of the assistant store managers (most likely Mark Edwards) “in early or mid-October 1999” asked her to send Rose’s employee file to the Winchester store, as his transfer had been approved by Bennett. Wimer Decl. ¶ 3. Wimer had no direct knowledge as to the basis for this instruction. Id. Wimer prepared and signed a transfer form, without securing any other management signatures, and sent the form and Rose’s file to the Winchester store on or about October 25, 1999. Id.; Def.’s Ex. 19. On November 5, 1999, Rose called the Glen Burnie store and spoke to a new assistant store manager, “Sean.” Def.’s Ex. 15, at 3. He explained to Sean that he was supposed to be transferred. Sean told Rose that Bennett had been promoted in September 1999, that he would check on Roses’s transfer, and that he would get back to Rose. Id. Rose called again on November 9, 1999, and left a message with an unnamed assistant store manager. Id. Either before or after he made this call on November 9, 1999, Rose received a message on his answering machine to call Charlotte Perry at the Glen Burnie store regarding his transfer. Id. Sometime in late December, Rose learned from Perry, a new Administrative Assistant Store Manager who exercised local responsibilities for human resource functions, that the transfer paperwork for Rose had been returned to the Glen Bur-nie store. Rose Dep. at 108; Def.’s Ex. 15, at 3; see also Wimer Decl. ¶ 4 (explaining that the paperwork had been sent to the Glen Burnie store sometime prior to April 2000). Rose asserts that Perry told him to find out why the papers were returned, Rose Dep. at 109, but the call log indicates that he offered to follow up. Def.’s Ex. 15, at 3. Rose spoke to an assistant store manager at the Winchester store on December 30, 1999 and was told that the manager was on vacation but would be asked why the papers had been' returned to the Glen Burnie store. Id. On that same day, Rose had a similar conversation with Charlotte Perry at the Glen Burnie store, and she stated that when the Winchester manager returned, she too would figure out what was going on. Id. at 4. Rose testified that, on three occasions during late November and December 1999, he left voicemail messages for the Human Resources Manager. Rose Dep. at 86-87. These phone calls were not included in Rose’s call log, submissions to the EEOC, or in his responses to interrogatories. Rose visited the Winchester store on January 21, 2000, and left a message for the assistant manager and the manager. Def.’s Ex. 15, at 4. Rose then received a telephone call from Charlotte Perry, who stated that she did not yet know what was happening in regard to his transfer. Id. Rose also received a telephone call from the Winchester store during which he was told that he should contact the Glen Burnie store about the transfer. Id. On January 26, 2000, Rose called Charlotte Perry to tell her that the Winchester store did not know about his transfer, and Perry stated that she was only an assistant but that she would find out what was happening. Id. That same day, Rose’s wife received a telephone call from Home Depot at their home in Greenbelt, Maryland, during which she was informed that Rose needed to go to the Glen Burnie store to fill out the leave of absence papers. Rose called Perry the next day. Perry told him that she did not know what happened to his original paperwork, but she would send his wife the forms to fill out. Id. at 5. According to Rose, the form was mailed without the complete address on it on February 4, 2000. On February 5, 2000, Rose began a series of hospital and physician visits for what he first believed to be heart attack or stroke symptoms, which were later diagnosed as symptoms of “panic attacks.” Id.; Rose Dep. at 35-36. Rose went through various medical consultations between February and April 2000, during which he was diagnosed with migraine headache, anxiety and fibromyalgia pain syndrome; he was referred to a psychiatrist. Rose Dep. at 5; Def.’s Ex. 21 (Dr. Luban Medical Records); Def.’s Ex. 22 (Dr. Thomas Medical Records). On February 7, 2000, someone at the Glen Burnie store contacted Rose about the fact that Home Depot had yet to receive his leave of absence paperwork. Def.’s Ex. 15, at 5. Rose stated that he would send it. On February 24, 2000, Rose received a letter from Faison that he had ten days to get his paperwork into the store or he would be terminated. Id. Fai-son readily concedes that he sent the letter to Rose to notify Rose that his employment would be terminated if the necessary leave of absence documentation was not received within ten days. Faison Decl. ¶ 9; Def.’s Ex. 23 (Letter from Jay Faison to Gary Rose, February 23, 2000). According to Faison, when the paperwork was received, Rose was continued on leave of absence status. Faison Deal. ¶ 9; Def.’s Ex. 20 (Leave of Absence Paperwork). However, the paperwork submitted by Rose only covered the period from August 1, 1999, through September 30, 1999. Def.’s Ex. 20. Rose’s Contacts the EEOC and Learns the Concept of Disability Discrimination Apparently as a result of the symptoms that appeared in early 2000, Rose is now unable to work at all. In any event, Rose contacted the EEOC on March 6, 2000. Def’s Ex. 24 (EEOC Telephone Inquiry Form). Rose felt that he was being “screwed” by Home Depot and being “discriminated against” because he did not receive the transfer. Rose Dep. at 119-20. When he called the EEOC, they told him about disability discrimination. Id. at 120. Rose’s EEOC charge, dated April 30, 2000, states: I. I have been employed by the above named employer since January 7, 1995. My most recent position is Sales Representative. I have a disability within the meaning of the ADA and as such, I have been away from the job site since July 1999. On or about October 1999, I requested a reasonable accommodation. II. I have not received any response from the company regarding this accommodation. III. I believe that I have been discriminated against based on my disability, in violation of the American with Disabilities Act of 1990, as amended, with respect to reasonable accommodation. Def.’s Ex. 26. In the affidavit Rose submitted to the EEOC, he attributed his 1999 symptoms to the conditions of working the night inventory shift: Since the company has failed to accommodate me, I have been away from my job since late July 27, 1999. The previous evening I had been assigned to work overnight, in a locked store vault performing my duties. Because the store was closed and the circulation was shut off, I became ill and was subsequently hospitalized. Defs Ex. 27 (EEOC Affidavit). There is no record of hospitalization however. Rose also stated in his EEOC intake form: I am affected at all times, not only at work. When air conditioning has been turned off it makes the condition worse in causing excruciating headaches, nasal congestion, sinus infections and an inability to sleep. Life’s normal functions are impaired. Def.’s Ex. 25, at 4 (EEOC Intake Form). On August 9, 2000, the EEOC issued its determination. The determination states: Documentary and testimonial evidence revealed that [Rose] is a qualified individual with a disability. [Home Depot] in its position statement denied that [Rose] has a disability. It also contended that [Rose] failed to follow the company’s policy in requesting a transfer. However, documentary evidence supports that [Rose] repeatedly requested a transfer to [Home Depot’s] Winchester, Virginia, store in accordance with its policy. Evidence further revealed that [Home Depot] denied [Rose’s] request and subsequently discharged him from his employment. Pl’s Ex. D. The determination further states that there is “reasonable cause” to believe that Home Depot discriminated against Rose by “denying him a reasonable accommodation for his disability.” Id. When Rose filed his Charge of Discrimination with the EEOC, the Employee Relations Specialist in the Home Depot Division Office in New Jersey, working together with an outside contractor, was involved in Home Depot’s investigation and response to that charge. Ippolito Decl. ¶ 16. After Home Depot reconstructed the events leading up to Rose’s EEOC charge, Home Depot contacted the Winchester store, and then decided to offer Rose a transfer to the Winchester store. Id. Rose declined the offer. Id. Home Depot also attempted to settle the charge with an offer of partial back pay. Id. Rose also declined this offer. Id.; Rose Dep. at 116-17. Rose has made no efforts to secure alternative employment since he left the Glen Burnie store on July 27, 1999, except for arranging one job interview, which never took place. Rose Dep. at 113-14; Baker Dep. at 100. The EEOC gave Rose a right to sue letter. He then filed the present suit, claiming discrimination under the American with Disabilities Act. Rose was officially terminated from his job with Home Depot on July 28, 2000. Pi’s Ex. E. However, Home Depot regards Rose as eligible for rehire. Id. III. A. The ADA requires covered entities, including private employers, to provide “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose undue hardship.” Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 689, 151 L.Ed.2d 615 (2002) (internal quotation marks omitted) (quoting 42 U.S.C. § 12112(b)(5)(A) (1994)). The ADA defines a “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Id. at 689 (internal quotation marks omitted) (quoting 42 U.S.C. § 12111(8)). The prima facie case in a failure to accommodate case under the ADA requires the plaintiff to show “(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 accommodation he could perform the essential functions of the position ...; and (4) that the [employer] refused to make such accommodations.” Rhoads v. Federal Deposit Ins., 257 F.3d 373, 387 n. 11 (4th Cir.2001) (alterations in original) (internal quotation marks omitted) (quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 6 (2d Cir.1999)). The question of whether a plaintiff is disabled under the ADA, “and therefore can bring a claim under the statute, is a question of law for the court, not a question of fact for the jury.” Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir.2001) (Rehabilitation Act case); see Poindexter v. Atchison, Topeka & Santa Fe Railway Co., 168 F.3d 1228, 1230 (10th Cir.1999) (“Thus, the Court in Bragdon makes clear that whether a claimed affliction constitutes an impairment under the ADA and whether the identified endeavor constitutes a major life activity are determinations of law for the court to decide.” (citing Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998))); cf. Betts v. Rector and Visitors of University of Virginia, 113 F.Supp.2d 970, 982 (W.D.Va.2000) (issue of disability under ADA is a question of law), rev’d on other grounds, 2001 WL 1023115, 18 Fed.Appx. 114 (4th Cir.2001)(unpublished). But see Cohen v. Township of Cheltenham, 174 F.Supp.2d 307, 326 n. 16 (E.D.Pa.2001) (“Courts in this circuit have treated the issue of disability in cases under the ADA as an issue of fact.”). In the absence of proof of how an individual is substantially limited in performing a major life activity by his or her alleged impairment, and to what degree, it is appropriate to dismiss the claim as a matter of law. EEOC v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir.2001). The ADA defines “disability” as a “(A) physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(2). Rose contends that his claim falls under subsection (A). In determining whether Rose suffered from a disability, the court is required to explore whether Rose was “disabled” within the meaning of the ADA at that point in time where he requested an accommodation and adverse action (in the form of a denial) was taken. Williams, at 691 (citing 42 U.S.C. § 12102(2)(A)); Pollard v. High’s of Baltimore, Inc., 281 F.3d 462, -, Slip. Op. at 5 (4th Cir.2002); Frazier v. Simmons, 254 F.3d 1247, 1256 (10th Cir.2001); Dubois v. Alderson-Broaddus College, 950 F.Supp. 754, 758 (N.D.W.Va.1997). Thus, Rose does not dispute defendant’s contention that the time period at issue begins on or about October 4, 1999, the date on which Rose called Lori Bennett regarding the transfer (as requested by Bennett). See supra. Rose also does not dispute defendant’s argument, and thus it is conceded, that Rose was no longer a “qualified individual” under the ADA as of February 5, 2000 (the date which Rose claims he became unable to work due to alleged emotional distress), and as such, he was no longer protected by the ADA. See Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). Therefore, Rose’s repeated references to his current psychological problems are not relevant to Rose’s burden to show that he had a disability that defendant failed to accommodate. See Mem. of Law in Support of Pl.’s Opp. to the Def.’s Mot. for Summ. J. at 3, 7 (hereinafter Rose’s Opp.). Rose contends that he had a physical impairment, vasomotor rhinitis, that substantially limited one or more major life activities. Compl. ¶ 3, Def.’s Ex. 29; Def.’s Ex. 25, at 4. Defendant assumes, for the purposes of this motion, that rhinitis (including vasomotor rhinitis) is a physiological disorder or condition affecting the respiratory system and thus qualifies as a physical impairment. See Williams, at 690 (quoting 45 C.F.R. § 84.3(j)(2)(I) (2001); 20 C.F.R. § 1630.2(h)(1)) (stating that the “physical or mental impairment” component of the definition of disability means, in part, “[a]ny physiological disorder, or condition ... affecting one or more of the following body systems: ... respiratory ... ”). However, defendant has not conceded that Rose actually suffers from the physical impairment of vasomotor rhinitis. It appears that Rose argues not only that his disability is vasomotor rhinitis, but also that his disability takes the form of the manifestations of his illness — episodic sinus infections, congestion, and headaches. Rose’s Opp. at 5. Rose correctly concedes, therefore, that he must demonstrate that these manifestations substantially affect a major life activity. Id. (“If a plaintiff has an underlying disability which has characteristic manifestations, the plaintiff must still show that the characteristic manifestations substantially affect one or more major life activities .... Here, Mr. Rose has met that burden .... ” (citing Sara Lee Corp. 287 F.3d 349)); see Sara Lee Corp. 237 F.3d at 352 (“An intermittent manifestation of a disease must be judged the same way as all other potential disabilities. That [ADA] statute is explicit-to be disabled under the ADA, a person must have a substantial limitation on a major life activity.”). According to the EEOC’s interpretative regulations, “[m]ajor life activities [,under subsection (A) of the definition of disability of the ADA,] means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” 29 C.F.R. § 1630.2(1); see also Williams, at 690. Rose’s complaint does not disclose which major life activities were allegedly substantially limited by his impairment. Compl. ¶ 4; Def.’s Ex. 29. However, in his memorandum opposing the motion for summary judgment, Rose contends that his physical impairment has affected his ability to work and to sleep, and to a lesser degree, to breathe. Rose’s Opp. at 8. The EEOC describes “substantially limits” as follows: (1) The term substantially limits means: (1) Unable to perform a major life activity that the average person in the general populations can perform; or (ii) Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. (2) The following factors should be considered in determining whether an individual is substantially limited in a major life activity: (i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j); see Williams, at 690 (providing the same); Halperin v. Abacus Tech. Corp., 128 F.3d 191, 199 & n. 11 (4th Cir.1997) (noting that courts and the EEOC have similarly defined the term “substantially limits” (citing 29 C.F.R. § 1630.2(j)(l))). The Fourth Circuit has further explained that “based on the aforementioned factors, it is evident that the term ‘disability’ does not include temporary medical conditions ..., even if those conditions require extended leaves of absence from work.” Halperin, 128 F.3d at 199 (emphasis added) (citations omitted); see Pollard, 281 F.3d at -, Slip Op. at 6-7; 29 C.F.R. pt. 1630, app. at 339 (noting that “temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities”). Therefore, some impairments that are limiting, but are only “temporary,” are not covered. The Supreme Court has reasoned that the term “substantially limits” must be interpreted strictly “to create a demanding standard for qualifying as disabled.” Williams, at 690. The Court stated: “Substantially” in the phrase “substantially limits” suggests “considerable” or “to a large degree.” See Webster’s Third International Dictionary 2280 (1976) (defining “substantially” as “in a substantial manner” and “substantial” as “considerable in amount, value, or worth” and “being that specified to a large degree or in the main”); see also 17 Oxford English Dictionary 66-67 (2d ed.1989) (“substantial”: “relating to or proceeding from the essence of a thing; essential”; “of ample or considerable amount, quantity, or dimensions”). The word “substantial” thus clearly precludes impairments that interfere in only a minor way with the performance of [a major life activity] .... Id. at 691 (emphasis added). The term “major fife activity” should be equally strictly construed. Id. at 691. The Supreme Court defined the term as such: “Major” in the phrase “major life activities” means important. See Webster’s, supra, at 1363 (defining “major” as “greater in dignity, rank, importance, or interest”). “Major life activities” thus refers to those activities that are of central importance to daily life. Id. at 691. The Court has noted that these terms must be construed strictly because it is clear that the ADA is not intended to cover all those with disabilities. Id. at 691. For instance, the Supreme Court has determined that “the ADA’s coverage is restricted to only those whose impairments are not mitigated by corrective measures.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 487, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999); Williams, at 691. Thus, one has a disability under subsection A of the ADA definition of disability, supra, if, notwithstanding the use of a corrective device, that individual is substantially limited in a major life activity.... The use or nonuse of a corrective device does not determine whether an individual is disabled; that determination depends on whether the limitations an individual with an impairment actually faces are in fact substantially limiting. Id. at 488, 119 S.Ct. 2139. The Fourth Circuit has elaborated on this notion that not all those with a physical impairment are covered by the ADA. It stated that the ADA is designed to “assure[ ] that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps.” ... Extending the statutory protections available under the ADA to individuals with broken bones, sprained joints, sore muscles, infectious diseases, or other ailments that temporarily limit an individual’s ability to work would trivialize this lofty objective. Halperin, 128 F.3d at 200 (first alteration in original) (citation omitted); see also Pollard, 281 F.3d at -, Slip Op. at 12. This concept includes those with lifetime impairments with intermittent manifestations that flare up. As stated, supra, the plaintiff is still required to demonstrate that the intermittent manifestations substantially limit a major life activity. Sara Lee Corp., 237 F.3d at 352; Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 16 (1st Cir.1997) (determining that acute episodic depression that has resulted in a five week absence -and four months of work restrictions was not substantially limiting even if the underlying condition will be life long). The Supreme Court in Williams ultimately held: to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The impairment’s impact must also be permanent or long-term. Williams, at 692 (citing 29 C.F.R. §§ 1630.2(j)(2)(ii)-(iii)). Moreover, plaintiffs must provide more than evidence of a medical diagnosis of an impairment to prove a disability. Id. at 692. Rather, “claiming the Act’s protection ... to prove a disability by offering evidence that the extent of the limitation caused by their impairment in terms of their own experience ... is substantial.” Id. (internal quotation marks omitted) (alterations in original) (quoting Albertson’s Inc. v. Kirkingburg, 527 U.S. 555, 567, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999)). The existence of a disability is to be determined on a case-by-case basis. Id. at 692 (citing 42 U.S.C. § 12102(2); Sutton, 527 U.S. at 483, 119 S.Ct. 2139; Albertson’s Inc., 527 U.S. at 566, 119 S.Ct. 2162); Pollard, 281 F.3d at -, Slip Op. at 7. B. Application of the above principles to the summary judgment record here compels the conclusion that Home Depot is entitled to judgment as a matter of law. Home Depot first argues that Rose cannot establish that he was substantially limited in any of his major life activities— breathing, sleeping, and working. Specifically, defendant argues that Rose has failed to demonstrate that the episodic mánifestations of his alleged medical impairment were not of sufficient intensity, frequency, and duration that they substantially limited his breathing, sleeping, and/or working. Defendant does not dispute that breathing, sleeping, and working qualify as major life activities. Defendant further argues that as Rose cannot demonstrate that all of his episodes of headaches, congestion, and sinus infections are characteristic manifestations of vasomotor rhinitis, Rose cannot demonstrate the efficacy or inefficacy of any mitigating measures that are available and cannot prove that his impairment was not simply a series of temporary and transitory conditions. Essentially, in a back-handed fashion, defendant is arguing that it is unclear whether Rose suffers from the physical impairment of vasomotor rhinitis. In a case similar to this one, Tangirés v. The Johns Hopkins Hospital, 79 F.Supp.2d 587 (D.Md.2000), aff'd, 230 F.3d 1354 (4th Cir.2000), the plaintiff alleged that she had asthma, that her asthma substantially limited major life activities, and that defendant failed to accommodate her condition with either changes in her workplace or a medical leave of absence. The defendant contended that the plaintiffs asthma did not constitute a physical impairment within the meaning of the ADA and did not substantially limit her major life activities. Id. at 594. Judge Harvey first noted that asthmatic symptoms can almost always be controlled. Id. at 595. The court then determined that the medical evidence in the record established that asthma is readily treatable by two types of medication, brochialdialators and corticosteroids (anti-inflammatory medications). Id. Plaintiff was resistant to the use of inhaled steroids, and one of her doctors testified that he “had a difficult time treating plaintiffs asthma because of her reluctance to take steroid drugs and her refusal to comply with recommendations.” Id. The court also noted that “[difficulties in controlling plaintiffs asthma also arose because plaintiff persistently fragmented her medical care by seeking treatment from so many different doctors and in various emergency rooms of different hospitals.” Id. The court concluded that, based on the record, plaintiffs asthma was treatable and “that during her employment she intentionally failed to follow her physicians’ recommendations that she take steroid medication.” Id. at 596. Thus, the court held, relying on the corrective mitigating measures law set out in Sutton v. United Airlines, Inc., supra, and Murphy v. United Parcel Service, 527 U.S. 516, 119 S.Ct. 2133, 144 L.Ed.2d 484 (1999): Since plaintiffs asthma is correctable by medication and since she voluntarily refused the recommended medication, her asthma did not substantially limit her in any major life activity. A plaintiff who does not avail herself of proper treatment is not a “qualified individual” under the ADA. Roberts v. County of Fairfax, Va., 937 F.Supp. 541, 549 (E.D.Va.1996). Since plaintiff has not on the record here presented proof that she has a disability as defined in the ADA, defendant is entitled to the entry of summary judgment in its favor as to all three counts of the complaint. Id. The court noted in a footnote that the defendant also argued that the plaintiff has not shown that her ability to work is substantially limited by the effect which her asthma has on her major life activity of breathing. Id. at 596 n. 7, 119 S.Ct. 2133. The court determined that it was unnecessary to reach this argument as it was determined that the plaintiff did not have a disability. Id.; see also Saunders v. Baltimore County, 163 F.Supp.2d 564, 570 (D.Md.2001) (granting the defendant’s motion to dismiss for failure to state a claim under the ADA in a case in which the plaintiff corrections officer suffered from asthma). Defendant argues that the present case is similar to Tangires because Rose did not use his steroid nasal sprays as directed by his doctors. However, it is unclear from the record (and thus, assuming defendant has the risk of non-persuasion on this issue, the issue cannot be determined as a matter of law) whether Rose followed the proper usage of his steroid nasal spray, in this instance Vancenase. Accordingly, I will assume that Rose properly used the nasal spray. What is evident, however, is that Rose did not follow the proper protocol in determining whether he had vasomotor rhinitis. Consequently, as a matter of law, he did not receive a proper treatment plan for his impairment. Rose’s failure to take the proper measures to gain a proper diagnosis necessary to a proper treatment plan is the legal equivalent of a refusal to avail oneself of proper treatment. Therefore, Rose has not, on the record, presented proof that he has a disability as defined in the ADA. Defendant is thus entitled to the entry of summary judgment in its favor. The medical evidence provided in this case shows that vasomotor rhinitis is a common, treatable condition. However, it is unclear whether Rose even suffered from this condition at all or solely. Dr. Gadde was unable to make a definitive diagnosis of vasomotor rhinitis. However, Rose told his family physician, Dr. Schwartz of the preliminary diagnosis, and Dr. Schwartz apparently determine