Labor & Employment Law Daily EEOC advances ADA claims on behalf of Walmart sales associate with Down Syndrome fired for attendance issues after her schedule was changed
Tuesday, February 4, 2020

EEOC advances ADA claims on behalf of Walmart sales associate with Down Syndrome fired for attendance issues after her schedule was changed

By Kathleen Kapusta, J.D.

There was no evidence, Walmart argued, that the employee’s refusal to work the new shift she was assigned was due to her Down Syndrome rather than her desire to avoid working later.

Despite its concern regarding the potential impact of this and similar cases on persons with Down Syndrome, and specifically whether companies would be less likely to employ them in the future, a federal court in Wisconsin denied Walmart’s motion for summary judgment against the ADA failure-to-accommodate and discrimination claims brought by the EEOC on behalf of a former sales associate with Down Syndrome who was fired for absenteeism after 16 years with the retailer and after a change in her schedule. “It is at least arguable,” said the court, that “instead of documenting her lapses and warning her of possible consequences, engaging in an interactive process required by the ADA would have resulted in an accommodation that worked.” Nor was Walmart entitled to summary judgment on the EEOC’s punitive damages claim as “the fact that Walmart supervisors undergo training on ADA issues and it has an entire department dedicated to addressing reasonable accommodations can sometimes serve as evidence that its failure to comply with the ADA was malicious or in reckless indifference to the plaintiff’s federal rights” (EEOC v. Wal-Mart Stores East LP, January 29, 2020, Griesbach, W.).

When Walmart hired the employee in 1999 as a part-time sales associate, her mother informed the store’s personnel coordinator that she could not work weekends and her availability depended on the bus schedule. For most of her employment, she was scheduled to work from 12-4 and during her tenure, she was consistently rated “Solid Performer” or “Meets Expectations.”

Attendance issues. She often left her shift early, however. Between January 9, 2012, and November 21, 2014, she left work at least 10 minutes or more before the end of her shift on 114 occasions and was absent seven times. Many of these departures were either approved by management or not counted against her.

Change in policy. In November 2014, the employee’s store implemented a computer-generated scheduling process that was based on customer traffic. According to the analytics, the busiest time of the day was from 4:00 p.m. to 5:30 p.m. and as a result, the employee was required to work from 1:00 p.m. until 5:30 p.m. During the first week of the new schedule, she left work more than an hour early on four occasions. To allow time to adjust to the new system, Walmart excused her missed hours, as well those of other associates.

Fired. The employee’s continued early departures prompted a discussion with her supervisor, during which the employee stated that she only worked 12-4 and she would get sick if she did not eat supper on time. In December, after receiving a written coaching, the employee complained about her new hours and asked for her old hours to be restored. She continued to leave early and in February, Walmart had her sign a form stating she could work from 12 p.m. to 6 p.m. She received a second written coaching in March and was ultimately fired in July after 17 attendance occurrences. Walmart’s policy called for termination after seven occurrences. Her guardian’s request that she be reinstated was denied.

Qualified. Although Walmart first argued that the employee was unable to perform an essential function of her job, regular attendance, the court found fact disputes precluding summary judgment on this issue. She had performed this part of her job satisfactorily enough for 16 years, receiving positive performance evaluations and regular wage increases, and it was only after her schedule changed that she experienced significant attendance problems.

Reasonable accommodation. And while Walmart explained that the new schedule was based on customer traffic and was designed to meet specific customer and operational demand, “that Walmart’s computer analytics showed a need for a Sales Associate between 4:00 p.m. and 5:30 p.m., however, does not mean that [the employee] needed to be that Sales Associate,” said the court. Indeed, as the EEOC pointed out, the store was open 24 hours a day, seven days a week and there was no showing there weren’t sales associates willing to work those hours. While Walmart might have preferred that the employee work during the peak customer traffic time, “a jury might find that it was not essential or even important for all Walmart Sales Associates to work during peak times,” the court observed.

Undue hardship? The question, said the court, was whether it was reasonable to accommodate her by allowing her to maintain her previous schedule or at least attempt to help her adjust to the change. She had requested that her new schedule be modified to what it had been for the preceding 15 years and while this may not have been the schedule Walmart wanted her to work, the court found it disputed whether allowing this accommodation would have caused an undue hardship on the operation of Walmart’s business.

But, Walmart argued, even had it provided this accommodation, this still would not have resulted in the employee’s regular attendance. However, prior to its modification of its scheduling policy, the court pointed out, Walmart regularly excused employees for early departures. And her attendance problems after the shift change, the EEOC asserted, did not show that she was unqualified or unable to complete her shifts. Rather they showed she needed an accommodation. Citing the opinion of its expert witness that “the new schedule and the pressure to adopt to it stressed [the employee] and threw her out of her routine, impacting her functioning in many areas,” the EEOC argued that a jury could conclude that her “attendance did not render her unqualified based upon Walmart’s lenient enforcement of its attendance policy and history of approving early departures for [her] and other employees.”

Interactive process. Nor did Walmart engage in the interactive process in an attempt to find an accommodation for the employee, the EEOC asserted. As to Walmart’s response that the EEOC failed to show she was a qualified individual, the court again pointed to her 15 years of satisfactory job performance before the schedule change. Noting that it was at least arguable that engaging in the interactive process would have resulted in an accommodation, the court pointed out that if her attendance difficulties after the schedule change were “due to the abruptness of the change and Walmart’s refusal to accommodate her fears and concerns,” a jury might find that the requested accommodation would have allowed the employee to perform her full duties. Denying Walmart’s motion for summary judgment, the court found fact disputes as to whether the requested accommodation was reasonable and whether with such an accommodation, the employee was qualified to perform the essential functions of her job.

Discrimination. And while Walmart argued that even if she was qualified, she was fired for absenteeism and there was no evidence connecting her absenteeism to her disability, the court turned to the testimony of the EEOC’s expert for the evidentiary link. Emphasizing the importance of routine for persons with Down Syndrome, the expert explained that because they lack the cognitive ability to adjust well to change, routine protects them from fear and anxiety and the elimination of routine can interfere with their ability to function effectively. This evidence, together with the employee’s work history, raised a jury question as to whether her absenteeism after the shift change was a product of her Down Syndrome “or simply her desire to get home earlier.”

Also rejected was Walmart’s contention that there was no evidence it discriminated against the employee based on her disability. Pointing out again that a reasonable jury could find she was a qualified individual who could perform her job with a reasonable accommodation, and that her requested accommodation would not have caused an undue hardship, the court found that “this amounts to discrimination in violation of the ADA.”

Punitive damages. Finally, denying summary judgment against the EEOC’s punitive damages claim, the court rejected Walmart’s argument that there was nothing in the record to show it acted with malice or reckless disregard of the employee’s rights. Although it pointed out that it had policies concerning reasonable accommodations for disabled individuals as well as an entire department dedicated exclusively to servicing accommodation issues, the court noted that the fact its “supervisors and managers persisted in their decision to terminate [the employee’s] employment and failed to consider an accommodation even when confronted by her sister and even after she requested re-employment could support a jury finding that Walmart’s conduct met the standard for awarding punitive damages.”

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