Labor & Employment Law Daily Jury verdict against Walmart in EEOC case on behalf of disabled cart attendant upheld
Friday, December 4, 2020

Jury verdict against Walmart in EEOC case on behalf of disabled cart attendant upheld

By Kathleen Kapusta, J.D.

After hearing all the evidence, the jury found a job coach was a reasonable accommodation for the employee in this case.

Although the EEOC’s case against Walmart on behalf of a profoundly disabled cart attendant presented close questions, particularly about whether he could perform the essential functions of his job with reasonable accommodations and whether a full-time job coach was a reasonable accommodation, a federal court in Wisconsin found the questions were within the jury’s purview and its award to the employee (it awarded over $5M for compensatory and punitive damages, which the court later capped at $300K, but added back pay, front pay, and other relief) was adequately supported by the evidence. Accordingly, the court denied Walmart’s motions for judgment as a matter of law, a new trial, and a reduction in compensatory damages (EEOC v. Wal-Mart Stores, Inc., November 25, 2020, Peterson, J.).

The employee, who is deaf and has other serious developmental, visual, and intellectual impairments, was institutionalized until, at the age of six, he went to live with foster parents. Although he is nonverbal, his family and job coaches communicate with him using different forms of sign language.

Removed from the schedule. From 1998 to 2017, he worked as a Walmart cart attendant. During that 17-year period, he had several different job coaches. In 2015, the store’s new manager met with the employee, his foster mother, and his job coach and gave them an accommodation medical questionnaire to complete. The employee was provided with two weeks of paid leave and was never again placed on the schedule.

The EEOC sued on behalf of the employee, asserting claims under the ADA for failure to accommodate and wrongful termination. After a three-and-a-half-day trial, the jury found that Walmart violated the ADA by failing to provide the employee with a reasonable accommodation and by ending his employment because of his disability. Although the court denied the EEOC’s request for a permanent injunction, it reduced the jury’s $5 million punitive damages award to $100,000 and awarded $200,000 in compensatory damages. It also awarded $41,224 in back pay, $58,124 in front pay, $4,495.72 in prejudgment interest, and $19,097.14 for tax consequences.

Essential job functions. Moving for judgment as a matter of law, Walmart argued that the employee could not perform the essential cart attendant functions of retrieving, organizing, and managing carts and customer service because he could not drive motorized carts from the parking lot to the store, steer a line of traditional shopping carts by himself, or respond to customer questions.

Motorized carts. While the parties agreed that an essential function of the employee’s job was retrieving and organizing carts in the parking lot and returning them to the store, Walmart failed to show that the specific task of driving motorized carts was an essential function of his position, said the court, noting that for almost 17 years, the employee was never instructed to do anything differently with respect to motorized carts, at least one of his managers knew his job coach drove the carts for him, and the employee regularly received positive performance evaluations. Thus a reasonable jury could find that driving a motorized cart was a marginal, infrequent function of his job and that this task could be performed by someone else when necessary.

Steering carts. Similarly, a reasonable jury could find that steering a line of carts was not in itself an essential function of his job, but rather one method by which he could perform the essential function of cart retrieval. Although he was visually impaired, his job coaches helped him in avoiding vehicles and pedestrians and there was evidence he could gather and push loose or stray carts on his own, nest them together, and physically push the nested carts. His job coaches also used signs and gestures to alert him to surrounding conditions or to keep him on task. Alternatively, said the court, a rational jury could conclude that having a job coach to help him stay focused or to act as his eyes and ears to avoid hazards was a reasonable accommodation.

Customer service. And while Walmart’s cart attendant job description listed customer service as an essential function, and Walmart argued it had a “10-foot rule” requiring all associates to greet and assist any customer coming within 10 feet of them, there was evidence that customer service was not a part of a cart attendant’s job. Further, although the employee could not verbally respond to customer questions, he retrieved carts for them upon request, helped them transport items and load merchandise into their cars, and retrieved their carts from their vehicles when they were done with them. In addition, he received praise for his interaction with customers and for adhering to the 10-foot rule. Thus, there was sufficient evidence to support the jury’s finding that he was able to perform the essential customer-service functions of the cart attendant position.

Undue hardship. In challenging the jury’s finding that there was no undue hardship, Walmart argued it faced serious legal risks associated with having the job coach, a non-associate, regularly perform work for the employee. However, it failed to produce any evidence of the actual nature or likelihood of such a risk, its potential costs to a large company, or whether it had previously investigated the risk during the employee’s 17 years with the company. As to Walmart’s contention the employee’s proposed accommodation “would require it to make fundamental changes to numerous workplace policies” because the cart attendant position wa intended to be a one-person job performed by an associate, the evidence showed Walmart allowed the employee to perform his position for more than 16 years and never changed its policies or stopped his job coaches from using the store’s cart caddy or motorized carts, handling merchandise, or interacting with customers. Thus, Walmart failed to show the jury acted irrationally in finding that it faced no undue hardship by allowing the employee to work full-time with his job coach.

Discriminatory intent. As to Walmart’s assertion that there was no evidence any associate ever made a derogatory comment about the employee or people with disabilities, the absence of direct evidence of discriminatory animus did not mean Walmart did not end the employee’s job because of his disability or that it did not act maliciously or in reckless disregard of his rights. And while Walmart pointed to its policies prohibiting discrimination, management guidelines on how to respond to accommodation requests, and its anti-discrimination training, “a reasonable jury could conclude that Walmart took adverse action against [the employee] despite its existing policies and resources.”

Turning to Walmart’s contention that the store and HR managers took the actions they did because they believed the employee could not perform several essential job functions by himself, the court noted that while they may have believed he was not qualified because he relied on a job coach, “the belief that a disabled employee is incapable of work does not insulate an employer from liability.” To the contrary, said the court, such a belief is “a hallmark of disability discrimination.”

Violence by job coach. Walmart also pointed to evidence that soon after the new store manager started, a shift manager told him she had “heard” that the job coach used violence against the employee in the parking lot. But she did not see the incident or interview any witnesses and there was no videotape or police call about the incident. And although the shift manager had previously made a police report about a physical altercation between the job coach and the employee, the police determined the incident was “unfounded.”

Don’t call me, I’ll call you. Further, said the court, a jury could find the way that Walmart handled the employee’s need for an accommodation reflected discriminatory intent. The employee’s foster mother testified that the store manager claimed to be an expert on disability law, asked her to fill out a “new-hire packet,” and told her to submit proof the employee had a disability that deserved an accommodation, even though he had worked at Walmart for 17 years, his disability was readily apparent, and he submitted accommodation paperwork when he was hired. She also claimed that when she handed the store manager the completed ADA paperwork, he said “Don’t call me. I’ll call you;” she never heard back from Walmart until the employee filed a discrimination charge; and a Walmart representative told her that they did not want him back. Thus a jury had evidence to support a reasonable finding that Walmart harbored discriminatory intent, malice, or reckless indifference to the employee’s rights.

Novel theory of discrimination. Next, arguing that punitive damages are categorically unavailable where the underlying theory of discrimination is novel or otherwise poorly recognized, Walmart argued that there was room for disagreement about whether a permanent job coach is a reasonable accommodation as a matter of law. Noting that whether a particular accommodation is reasonable or poses an undue hardship are fact questions to be decided on an individualized, case-by-case basis, the court observed that the jury, after hearing all the evidence, found that a job coach was a reasonable accommodation for the employee in this case. “The fact that other courts have found differently based on a different set of facts does not mean that the EEOC’s theory of discrimination was novel.” Thus, the jury had a reasonable basis to find that an award of punitive damages was appropriate.

Motion for new trial. As to Walmart’s motion for a new trial, the court first rejected the retailer’s contention that its decision not to allow Walmart to call the employee as a live witness was prejudicial. Noting it had determined that attempting to administer the oath to the employee and elicit live testimony from him at trial would only demonstrate his ability to communicate in a stressful court setting and not be very informative of his capabilities in the workplace, the court pointed out that Walmart had several opportunities to show he had limited or no ability to communicate. It could have used excerpts from his attempted deposition, selections and outtakes from the EEOC’s “day in the life” video of the employee, questioned its witnesses and cross examined the EEOC’s witnesses about his communication skills, and argued in closing that this evidence showed his lack of communication skills and inability to work independently. Noting further that Walmart also argued that the jurors should draw an adverse inference from the fact that the employee was not called to testify, the court found the exclusion of his live trial testimony did not warrant a new trial.

Walmart also contended that its punitive damages defense was unfairly prejudiced by the court’s decision to exclude the store and HR managers’ testimony that they were concerned Walmart could face wage and hour issues if they allowed the employee to work with an unpaid job coach. But neither manager provided any evidence of an actual wage and hour compliance problem. Thus their concerns were speculative and were likely to cause confusion for the jury.

Kolstad instruction. Turning to Walmart’s assertion it was entitled to a good-faith instruction under Kolstad, which provides that an employer may avoid liability for punitive damages by proving “good faith efforts” to comply with anti-discrimination laws if the employee establishes malicious or reckless conduct and a basis for employer liability, the court noted that it found Walmart waived the affirmative defense by failing to plead it in its answer or litigate it.

While the Seventh Circuit has not ruled expressly that the Kolstad good faith defense is an affirmative defense, it has interpreted Kolstad as placing the burden of proof on the defendant to show good faith and not making it an element of a punitive damages claim. Observing that several other appeals courts have relied on similar reasoning in holding that the Kolstad defense is an affirmative defense, the court found Walmart failed to show it erred in treating the Kolstad good faith defense as an affirmative defense.

And while Walmart claimed it did not waive the defense because it adequately contested the EEOC’s right to recover punitive damages in its answer and contested the matter on summary judgment, its generic denial that the EEOC was not entitled to any relief or damages, “including punitive damages, compensatory damages, prejudgment interest, costs, penalties, or attorney’s fees” did not provide notice that Walmart would assert good-faith compliance with a non-discrimination policy.

Motion to remit. Finally, Walmart argued that the court should remit the $200,000 compensatory damages award to $20,000 because the employee experienced only “some level of additional anxiety beyond his baseline.” However, the court pointed out, several witnesses testified that after being taken off the schedule, the employee was so distraught he would sit and pour water into an imaginary hole in the floor. There was also testimony regarding his increased anxiety, and that the loss of work was devastating to the whole family since “everything that [the family] had hoped for” for the employee—”who was actually thrown away as a kid”—”kind of crumbled” after Walmart’s actions. While another jury might have evaluated his damages more modestly, the court found ample evidence to support the jury’s verdict.

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