Labor & Employment Law Daily EEOC ADA claims on behalf of disabled Wal-Mart cart pusher head to trial
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Friday, December 21, 2018

EEOC ADA claims on behalf of disabled Wal-Mart cart pusher head to trial

By Brandi O. Brown, J.D.

In the EEOC’s suit alleging that Wal-Mart refused to accommodate a deaf, visually impaired, and intellectually disabled cart pusher by allowing him to work with a job aide as he had done for many years, a federal district court denied Wal-Mart’s motion for summary judgment against ADA failure-to-accommodate and constructive discharge claims. The court found that disputed issues of material fact remained, including whether the employee was a “qualified” individual and whether allowing a permanent job coach was a reasonable accommodation (EEOC v. Wal-Mart Stores, Inc., December 18, 2018, Crabb, B.).

Worked with a job coach. In 1998, the employee at the center of this dispute began working at a Wal-Mart in Wisconsin as a cart pusher. Now 40 years old, the employee has been deaf, visually impaired, and intellectually and developmentally delayed for all of his life. In early 1999, Wal-Mart allowed him several accommodations, including the ability to work with his job coach/aide. During his employment he always worked with a job coach, a duty that was rotated and paid for through a Medicaid program. The parties did not dispute that the employee’s job coaches assisted in several ways, including watching for oncoming cars, helping the employee stay focused, and steering longer lines of carts. The employee’s performance ratings were generally positive, but his employment was not entirely without incident.

Incident with job coach. In 2012, a shift manager reported an incident between the employee and his primary job aide, about whom customers had complained. According to these reports, the job coach was seen physically abusing the employee. However, the police found the report unfounded because there were no physical injuries. In 2015, after a new manager took over the store, the incident was brought up again and manager decided to “delve deeper” into use of a job coach. The employee was asked to provide current, medically-supported information about his condition and reasonable accommodations.

Returned form, was not scheduled to work. He was asked to have his physician fill out an “Accommodation Medical Questionnaire.” In it his physician recommended as an accommodation that he have a “job coach-to do seeing & hearing.” What happened after the form was returned to the store manager, however, is disputed. The store manager claimed he asked for more information, but the plaintiffs denied he made such a request, stating that they were instead told to wait to hear from him In any event, the employee was not placed on the schedule or contacted after that date in July and in August the employee lost access to the employee’s online portal. He filed a charge with the EEOC and subsequent mediation failed. The EEOC brought suit on his behalf. The employer filed a motion for summary judgment.

No rule that permanent coach is unreasonable. For purposes of the motion, Wal-Mart did not contest that the employee was disabled. Instead, it made a variety of arguments on whether the accommodations requested were reasonable, whether the employee was a qualified individual, and whether he was terminated. As to whether a permanent job coach is a reasonable accommodation, the court noted that limited published case law exists on the subject, although there is EEOC guidance that states that an employer “also may be required to allow a job coach paid by a public or private social service agency to accompany the employee at the job site as a reasonable accommodation.” (However, a guidance regulation refers to a “temporary ‘job coach’.”) A few courts have held that indefinite use of a job coach is not a reasonable accommodation. Nevertheless, the court concluded that to the extent the employer was “advocating for a per se rule that a permanent job coach is never a reasonable accommodation,” the court was not persuaded and the Seventh Circuit had not adopted such a rule.

Disputes over job duties. Regarding whether the employee was a “qualified individual,” even if a permanent job coach was a reasonable accommodation, the court determined that factual questions prevented resolution on summary judgment. The employer relied on the job description and testimony of the manager and some other employees that there were duties that were essential outside of cart pushing, which the employee could not do. However, that evidence was disputed by evidence presented by the plaintiff that not all of the functions noted by the employer were essential, with testimony by more than one person that at least 95 (and as much as 98) percent of the cart attendant’s time is spent pushing carts. From the evidence presented by the plaintiff, the court explained, a reasonable jury could conclude that the essential function was cart collecting and placement and that customer interaction was not essential. The court also found genuine disputes over the extent to which the employee’s coaches might have provided assistance.

Unusual undue hardship argument. The employer also made an undue hardship argument, claiming the potential for legal and safety risks if the employee were allowed to have a permanent job coach (particularly one that had been reported for “beating” the employee), but its legal basis for the argument came from religious accommodation cases. The employer failed to cite any legal authority for the position that the Title VII standard should apply to ADA claims. It was also not clear from the evidence that allowing the employee to have a job coach would pose a safety risk, particularly if the job coach in question did not continue to serve as the employee’s job coach.

Disputes over what happened during the interactive process also prevented the court from granting summary judgment on that claim. The related disability discrimination claim, based on a claim of constructive or actual discharge, also had disputes of fact requiring a jury’s resolution. The court also declined to grant summary judgment on the punitive damages claim.

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