By Marjorie Johnson, J.D. A Wal-Mart employee who worked as an “unloader” at a distribution center, and was denied her request to avoid heavy lifting during her pregnancy, failed to revive her ADA and state law failure-to-accommodate claims because she was unable to show she could have performed an essential function of her job—manually lifting up to 60 pounds—with or without a reasonable accommodation. Affirming summary judgment, the First Circuit also refused to reinstate her retaliation claim since she failed to refute Wal-Mart’s assertion that it fired her almost two years later because she failed to submit medical papers to support her need for medical leave for an unrelated arm injury (Lang v. Wal-Mart Stores East, L.P., March 2, 2016, Thompson, O.). Admittedly couldn’t do job. Assuming without deciding that the employee had a disability under the ADA, the First Circuit found her claim was properly tossed on summary judgment because she could not perform essential functions of her unloader job during her pregnancy with or without a reasonable accommodation. Significantly, during the lower court proceedings, both the employee and her counsel repeatedly conceded that lifting up to 60 pounds without assistance was an essential function. Although she now made the entirely inconsistent argument that the district court erred by concluding that this was an essential job function—and that the job only entailed getting cargo off by hand or with power equipment—this was not an “extraordinary” situation in which the appeals court would address an issue that was not previously raised. No accommodation available. The appeals court also squarely rejected her assertion that Wal-Mart should have accommodated her by assigning her only to trailers that did not require unloading by hand. This argument was a “non-starter” since the ADA did not require the company to accommodate her by exempting her from having to perform an essential job function. She also failed to show that the company should have transferred her to a vacant position that did not require heavy lifting since she offered no evidence that any such jobs were available at the time. And although Wal-Mart placed her in a less physically-demanding position when she returned from maternity leave, she failed to show any such job was open when she made her accommodation request eight months earlier. Finally, Wal-Mart’s purported omission of an interactive process was of no moment because the employee couldn’t perform the essential duties of her job. Because the parties and district court assumed that state law paralleled federal law, the First Circuit assumed the same and affirmed summary judgment on her New Hampshire Civil Rights Act claim as well. Discharge not retaliatory. The employee’s state law retaliation claim met the same fate since she failed to establish that Wal-Mart’s proffered reason for terminating her was pretextual. The company claimed that it discharged her in August 2012 (around a year after she returned from maternity leave and almost two years after her accommodation request) because she repeatedly failed to submit medical papers to support leave she began taking in February due to an arm injury. Notably, she did not dispute that she never turned over the requested documents or that Wal-Mart treated similarly-situated peers differently. Instead, she fashioned a “creative,” “multipart” argument the First Circuit referred to as the “Wal-Mart-contrivance theory. Under her speculative “contrivance” theory, the employee claimed that a “sinister” motive could be gleaned by Wal-Mart’s denial of her workers’ compensation claim on its own or in concert with the carrier, which she claimed it did out of “retaliatory rage” over her accommodation request and administrative filings. She also claimed that the HR manager extended her light-duty assignment (which she was granted after her arm injury) so that she would be forced to take an unpaid leave in order to transfer to Florida with her husband, since Wal-Mart had a policy of not transferring employees on light duty. However, her only evidence of a “sinister” motive regarding her denial of workers’ comp benefits was that the HR manager spoke “one on one” with her doctor and the claims adjuster. Because she offered no evidence regarding what the participants actually talked about, this did not suggest a retaliatory motive. Similarly, her contention that the HR manager extended her light-duty work to stop her from transferring to Florida was also speculative, and she herself even said she thought she did so to help her keep her income. Thus, her entire multipart argument fell “like a house of cards.” Comments did not reveal animus. The First Circuit also rejected her assertion that pretext could be inferred from certain comments by the HR manager and another HR rep. First, the HR rep’s alleged comment that the employee’s pregnancy was “a liability” and she should “apply for FMLA” leave was made nearly two years prior to her termination and there was no evidence that the she played any part in the decision to fire her. Similarly, the HR manager’s alleged comment during her pregnancy that “if I had to accommodate you, I'd have to accommodate the rest” was also not suggestive of retaliation. Rather, the statement basically expressed worry that accommodating one nonqualified person may require the company to accommodate others.
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